IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


*'^.'^^^. 


<^^;v' 


1.0 


I.I 


11.25 


m  m 


US  1^ 

•yuu 

m 

1.4 


1.6 


V] 


<^ 


/2 


/ 


'/ 


Photogr^hic 

Sciences 
Corporation 


23  WEST  MAIN  STREET 

WEBSTER,  N.Y.  14580 

(716)  872-4503 


0 


i/.A 


CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  Microreproductions  /  Institut  Canadian  de  microreproductions  historiques 


Technical  and  Bibliographic  Notes/Notes  techniques  et  bibliographiques 


The  Institute  has  attempted  to  obtain  the  best 
original  copy  available  for  filming.  Features  of  this 
copy  which  may  be  bibliographically  unique, 
which  may  alter  any  of  the  images  in  the 
reproduction,  or  which  may  significantly  change 
the  usual  method  of  filming,  are  checked  below. 


D 


D 


D 


D 


D 


Coloured  covers/ 
Couverture  de  couleur 


I      I    Covers  damaged/ 


Couverture  endommagde 


Covers  restored  and/or  laminated/ 
Couverture  restaurde  et/ou  pelliculde 


I      I    Cover  title  missing/ 


Le  titre  de  couverture  manque 


I      I    Coloured  maps/ 


Cartes  gdographiques  en  couleur 


Coloured  ink  (i.e.  other  than  blue  or  black)/ 
Encre  de  couleur  (i.e.  autre  que  bleue  ou  noire) 


I      I    Coloured  plates  and/or  illustrations/ 


Planches  et/ou  illustrations  en  couleur 

Bound  with  other  material/ 
Relid  avec  d'autres  documents 

Tight  binding  may  cause  shadows  or  distortion 
along  interior  margin/ 

La  re  Mure  serr^e  peut  causer  de  I'ombre  ou  de  la 
distortion  le  long  de  la  marge  intdrieure 

Blank  leaves  added  during  restoration  may 
appear  within  the  text.  Whenever  possible,  these 
have  been  omitted  from  filming/ 
II  se  peut  que  certaines  pages  blanches  ajout6es 
lors  d'une  restauration  apparaissent  dans  le  texte, 
mais,  lorsque  cela  6tait  possible,  ces  pages  n'ont 
pas  6t6  film6es. 


L'Institut  a  microfilm^  le  meilleur  exemplaire 
qu'il  lui  a  6t6  possible  de  se  procurer.  Les  details 
de  cet  exemplaire  qui  sont  peut-dtre  uniques  du 
point  de  vue  bibliographique,  qui  peuvent  modifier 
une  image  reproduite,  ou  qui  peuvent  exiger  une 
modification  dans  la  mdthode  normale  de  filmage 
sont  indiquds  ci-dessous. 


The 
to  tt 


D 
D 
D 
0 
D 
0 

n 

D 
D 
D 


Coloured  pages/ 
Pages  de  couleur 

Pages  damaged/ 
Pages  endommag^es 

Pages  restored  and/or  laminated/ 
Pages  restaur6es  et/ou  pelliculdes 

Pages  discoloured,  stained  or  foxed/ 
Pages  ddcolordes,  tachetdes  ou  piqudes 

Pages  detached/ 
Pages  ddtachdes 

Showthrough/ 
Transparence 

Quality  of  print  varies/ 
Qualitd  indgale  de  I'impression 

Includes  supplementary  material/ 
Comprend  du  materiel  supplementaire 

Only  edition  available/ 
Seule  Edition  disponible 

Pages  wholly  or  partially  obscured  by  errata 
slips,  tissues,  etc.,  have  been  refilmed  to 
ensure  the  best  possible  image/ 
Les  pages  totalement  ou  partiellement 
obscurcies  par  un  feuillet  d'errata,  une  pelure, 
etc.,  ont  6t6  film6es  i  nouveau  de  faqon  d 
obtenir  la  meilleure  image  possible. 


The 
poss 
of  til 
filmi 


Origi 
begii 
the  I 
sion, 
othe 
first 
sion, 
or  ill 


The  I 
shall 
TINLi 
whic 

Map; 

diffei 

entin 

begii 

right 

requ 

metK 


D 


Additional  comments:/ 
Commentaires  suppldmentaires: 


This  item  is  filmed  at  the  reduction  ratio  checked  below/ 

Ce  document  est  filmd  au  taux  de  reduction  indiqud  ci-dessous. 

10X  14X  18X  22X 


26X 


30X 


y 

12X 


16X 


20X 


24X 


28X 


32X 


The  copy  filmed  here  has  been  reproduced  thanks 

to  the  generosity  of: 

re 

La  Bibliothique  de  la  Villa  de  Montreal 

dtails 

9S  du 

Tiodifier 

The  images  appearing  here  are  the  best  quality 

Br  une 

possible  considering  the  condition  and  legibility 

ilmage 

of  the  original  copy  and  in  keeping  with  the 

filming  contract  specifications. 

Original  copies  in  printed  paper  covers  are  filmed 
beginning  with  the  front  cover  and  ending  on 
the  last  page  with  a  printed  or  illustrated  impres- 
sion, or  the  back  cover  when  appropriate.  All 
other  original  copies  are  filmed  beginning  on  the 
first  page  with  a  printed  or  illustrated  impres- 
sion, and  ending  on  the  last  page  with  a  printed 
or  illustrated  impression. 


ies 


L'exemplaire  1\\m6  fut  reproduit  grftce  A  la 
g6n6ro8it6  de: 

La  Bibliothdque  de  ia  Ville  de  Montreal 


Les  images  suivantes  ont  6t6  reproduites  avec  le 
plus  grand  soin,  compte  tenu  de  la  condition  et 
de  la  nettetd  de  l'exemplaire  fiimd,  et  en 
conformity  avec  les  conditions  du  contrat  de 
filmage. 

Les  exemplaires  originaux  dont  la  couverture  en 
papier  est  imprim6e  sont  film6s  en  commenpant 
par  le  premier  plat  et  en  terminant  soit  par  la 
dernidre  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration,  soit  par  le  second 
plat,  selon  le  cas.  Tous  les  autres  exemplaires 
originaux  sont  film6s  en  commenpant  par  la 
premidre  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration  et  en  terminant  par 
la  dernidre  page  qui  comporte  une  telle 
empreinte. 


re 


The  last  recorded  frame  on  each  microfiche 
shall  contain  the  symbol  — ^  (meaning  "CON- 
TINUED"), or  the  symbol  V  (meaning  "END"), 
whichever  applies. 

Maps,  plates,  charts,  etc.,  may  be  filmed  at 
different  reduction  ratios.  Those  too  large  to  be 
entirely  included  in  one  exposure  are  filmed 
beginning  in  the  upper  left  hand  corner,  left  to 
right  and  top  to  bottom,  as  many  frames  as 
required.  The  following  diagrams  illustrate  the 
method: 


Un  des  symboles  suivants  apparaitra  sur  la 
dernidre  image  de  cheque  microfiche,  selon  le 
cas:  le  symbole  — ►signifie  "A  SUIVRE",  le 
symbols  V  signifie  "FIN". 

Les  cartes,  planches,  tableaux,  etc..  peuvent  dtre 
film6s  d  des  taux  de  reduction  diffdrents. 
Lorsque  le  document  est  trop  grand  pour  dtre 
reproduit  en  un  seul  clich6,  il  est  film6  6  partir 
de  I'angle  sup6rieur  gauche,  de  gauche  d  droite, 
et  de  haut  en  bas,  en  prenant  le  nombre 
d'images  n6cessaire.  Les  diagrammes  suivants 
illustrent  la  m^thode. 


y  errata 
»d  to 

nt 

ne  pelure, 

ipon  d 


1 

2 

3 

32X 


1 

2 

3 

4 

5 

6 

STENOG 


CITY 


K\ 


t  >  R   TKEASON,  MURDI 

RIOT 


MISCI 


CF  AMERICAN  STATES] 

AND    JUDGES    11 

AND    INE 

ORA' 


This  work  is  publishe( 
making  two  volumes  a  y 

BLE  IN  ADVAMCE. — AH  CO 

j  .     O'  Address  Gould's 


GOULDS 


STENOGRAPHIC  REPORTER; 


PUBLISHED    MONTHLY, 


IN   THE 


CITY    OF    WASHINGTON, 


/  i/-^' 


\ 


AND  DEVOTED  TO  THE  RECORDINO  OF 


IMPORTANT    TRIALS, 

R   TKEASON,  MURDER,    HIGHWAY    ROBBERY,    MAIL    ROBBERY,    CONSPIRACY, 
RIOT,  ARSON,  BURGLARY,  SEDUCTION,  ETC. 


AUO 


MISCELLANEOUS    SPEECHES 

l/F  AMERICAN  STATESMEN,  IN  CONGRESS  AND  STATE  LEGISLATURES  ;  LAWYERS 

AND   JUDGES   IN   THE   SUPREME   COURT    OF    THE   UNITED    STATES 

AND    INDIVIDUAL    STATES;     POLITICAL    ADDRESSES, 

ORATIONS,  LECTURES  UPON  ARTS,  SCIENCFS, 

LITERATURE,     AND    MORALS. 

VOL.   II. 

1841. 

[13  Sheets,  Periodical,] 


•  :ji."' 


I 


This  work  is  published  and  sent  through  the  mail,  in  monthly  numbers  of  64  pages, — 
making  two  volumes  a  year,  of  384  pages  each,  at  $1  the  volume,  or  $2  a  year,  paya- 
si£  IN  ADVAMCE. — AH  communications  must  be  franked,  or  Postage  Paid. 

O'  Address  Gould's  Reporter,  Washington  City,  D.  C. 


T'    ' 


/ 


Entered  according  to  Act  of  Congress,  in  the  year  1841,  by 

MARCUS  T.  C.  GOULD, 

in  the  Clerk's  Office  of  the  District  Ccrurt  for  the  Western  District  of  Pennsylvania. 


11868 


o 


f.\ 


STENOGRAPHIC  REPORTER. 


Vol.  II 1S41. 


Nos.,  I,  -J,  3,  4,  ■'),  0. 


PROSPECTUS, 

TO  THE  FIRST  VOLUME  OK 

A    MONTHLY    PERIODICAL, 

PUBLISIIEU  IN  WASHINGTON  CITY,  D.  C. 


TIic  Subscriber,  formerly  well  known  to  llic  American  public  by  hi» 
numerous  Reports  of  Convention  debates,  Legislative  debates,  Sermons, 
Trials,  Orations,  Addresses,  Lectures,  &c.,  in  tlie  principal  cities  of  tlu- 
United  States — as  the  author  of  a  work  on  stenography,  aiid  as  editor  and 
publisher  of  several  successful  periodical  works  in  the  city  of  Philadelphia 
— having  resumed  his  Stenographic  profession,  respectfully  announces  his 
intention  to  publish  a  series  of  periodical  numbers  and  volumes,  to  em- 
brace important  Trials  for  Treason,  Murder,  Highway  Robbery,  Mail 
Robbery,  Conspiracy,  Riot,  Arson,  Burglary,  Seduction,  <^c.  Also,  mis. 
cellaneous  speeches  of  American  Statesmen,  in  Congress,  and  other  Legis- 
lative bodies ;  Lawyers  and  Judges  in  the  Supreme  Court  of  the  United 
States,  and  individual  Slates ;  political  addresses,  orations,  lectures  upon 
arts,  sciences,  literature  and  morals. 

Appropriate  materials  for  such  a  publication  have  been  accumulated, 
ill  iliort  hand,  during  the  last  twenty  years,  from  the  lips  of  eminent 
/Vmcrican  orators  in  fifteen  ditlcrent  States  of  the  Union.  From  these 
materials  about  10,000  pages  have  been  published  in  book  and  pamphlet 
form,  at  ditferent  times,  and  in  various  places  ;  but,  though  liberally  patro- 
nised, in  particular  States  and  distri(;ts,  no  attempt  was  made  to  give  them 
a  more  general  spread — they  were  isolated  items,  without  connection,  uni- 
formity, or  order,  and  are  now  generally  out  of  print,  and  not  easily  ob- 
tained even  for  reference,  however  desirable. 

At  the  earnest  solicitation  of  numerous  professional  gentlemen,  and 
many  distinguished  citizens  of  the  United  States,  the  subscriber  has  been 
induced  to  enter  upon  the  plan  above  proposed  ;  and,  as  he  has  hitherto 
enjoyed  the  confidtincc  and  received  tbe  countenance  and  favor,  of  Legis 
latures,  Courts,  and  public  speakers,  it  will  be  his  aim  to  deserve  their 
friendly  support  in  future. 

To  select,  revise,  arrange,  and  publish,  in  a  uniform  series  of  numbers 
and  volumes,  the  better  portions  of  the  matter  alluded  to,  and  to  add  from 
time  to  time  new  matter  of  a  similar  character,  when  recommended  by 
its  merits,  and  called  for  by  the  public,  are  prominent  objects  of  this  pub- 


Ci 


(JOULl)  S   REPORTER. 


lioation  ;  nor  will  nmltor  of  this  cliuructcr  be  rcjiictcd.  tlioiigli  oocusioniilly 
rcpDiU'd  hy  itthers,  or  ('iiriiisii(;il  liy  speakers  tlicnisclvcs. 

Aiiutlirr  (>l))<;ct  is,  tn  secure  u  more  general  diHusion,  liy  ii.  ri'^ular  am! 
clieap  mock'  of  distribiitioii,  llirough  the  mail,  to  subscrihers  at  a  distance 
•Vom  the  plare  of  publication,  and  from  the  cities,  legislative  bodies,  courts, 
und  other  jiiaces,  where  such  materials  are  ciiiefly  furnished  ;  while  those 
residing  in  or  near  the  larger  cities  and  towns,  may  he  regularly  sup[die(l 
with  sinlgc  numbers,  or  pc^rlect  volumes,  through  \.\w  hands  of  booksellers^ 
;ig(!nts,  or  carriers. 

The  uork  will  be  |)riiitcd  upon  cxceller.*  paper  and  with  new  type. 
The  monthly  numbers  will  contain  not  less  than  04  octavo  pages  each,  with 
H  handsome;  printed  cover.  Price,  single,  to  non-subscribers,  on  delivery, 
twenty-live  cents.  Each  volume  will  consist  of  at  least  0  numbers,  or  ;iy4 
pag(\s,  with  a  title  page  and  index ;  price,  to  subscribers  who  have;  their 
numbers  regularly  sent  through  the  mail.  One  Dollar  a  volume,  or  Two 
Dollars  a  year,  payable  in  advance.  If  delivered  in  cities  und  towns,  not 
in  numbers,  but  at  the  close  of  each  volume,  One  Dollar  a  volume  on 
delivery. 

When  an  important  Irid/,  or  other  subject,  is  exciting  an  intense  interest, 
and  is  deemed  of  suHicient  importance  to  authorize  its  imntcdialc  puh/icution, 
I'lUirc,  and  in  comiectioii,  it  will  be  thus  published  and  distriituled  at  once, 
in  a  single  pamphlet,  though  constituting  an  equivalent  for  several  single 
numbers  of  the  promised  series — for  example  : 

The  /ate  Trial  of  the  Celehrated  Mail  Rohher,  Dr.  John  F.  Braddee,  m 
the  United  States  Circuit  Coiu't  at  Pittsburg,  for  a  succession  oi  daring  and 
extensive  depredations  upon  the  United  States  Mails,  at  Uniontown,  Penn., 
having  passed  through  a  large  pamphlet  edition  in  the  course  of  a  few 
days,  without  supplying  a  tenth  jjart  of  the  probable  demand  throughout 
the  Country,  is  thought  deserving  of  a  place  at  the  commencement  of  this 
publication  ;  and  will  accordingly  be  revised  and  republished,  iimnediatehj, 
in  a  style  not  derogatory  to  its  importance,  and  the  distinguished  legal 
talents  displayed  on  the  occasion.  It  will  make  about  190  pages,  or  equal 
to  3  regular  numbers  of  the  periodical,  and  be  ready  for  delivery  on  the 
15th  September  instant,  (1841)  at  Fifty  cents — it  may  be  considered  as  the 
half  part  of  Volume  1 — of  which. 

The  second,  it  is  expected,  will  embrace  the  entire  Trial  of  Alex.^npeii 
McLeod — should  it  take  place  as  now  proposed  ;  and  arrangements  art; 
already  made  for  publishing  it,  immediately  after  the  close  of  the  Trial,  so 
that  it  may  be  distributed  through  the  mails,  and  otherwise,  at  once,  to  all 
who  have  subscribed.  The  character  and  importance  of  this  Trial,  ixnd 
the  interest  which  it  has  excited,  arc  sulficiently  known  to  all,  nor  is  it 
probable  that  public  anxiety  will  at  all  abate,  till  the  subject  is  definitely 
disposed  of  by  the  legitimate  authorities  and  ultimate  tribunal. 

In  relation  to  the  case  of  Dr.  Braddee,  a  lew  words  of  explanation  are 
necessary.  The  safety  of  the  United  States  Mails  is  a  matter  of  interest 
to  every  individual  throughout  the  Country — it  strikes  at  the  root  of  all 
our  varied  interests,  for  the  affairs  of  (jloverninent  could  scarcely  be  carried 
on  a  week  without  the  mails. 

The  case  of  Braddee  is  with  jJt  a  parallel.  He  was  enjoying  a  Quack 
Medical  Practice  worth  from  ^.'jjOuO  to  $15,000  a  year.  He  was  sus- 
pected, arrested,  his  premises  searched,  and  no  less  than  ffleen  mail  bags 
were  found,  cut  open,  rifled,  and  secreted  under  an  out- building.     Money 


i 


if 


til 
ai 

01 


h!. 


o 

(' 
1' 

Ct 

t; 


#• 


MCLEOD  S   TniAL. 


^ 


aiul  utlur  property  w(Te  inissiiijr  from  tin*  inaiLs,  uUtut  this  timo,  to  the 
aiiKMint  of  liiilt'  a  million  of  cioljars,  of  wiiioii  i4iil(),r>()0  vverf  found  in 
Hruddci'.s  liay-iiu)\v,  and  other  items  paid  away  In  him,  were  nvovered, 
though  niiich  is  yet  uiis.sing.  lie  was  hcdd  to  hail  in  tin;  sun>  of  iSl'iO.OOO, 
uud  continued  at  large  from  January  till  May,  HI  I.  When  his  trial  came 
on,  he  chartered  a  sleamhoat,  ami  hroiigiit  tocuiu't,  more  than  one  Inindred 
witn«\ss's,  a  distanci;  of  si-veiity  miles,  triumphantly  hoasting  orHiis  way, 
that  he  had  those  who  would  siirar  him  out  (if  lirll,  if  already  there^ — he 
hail  also  secured  tlu;  services  of  no  less  tiian  seven  lawyers. 

lie  was  ni'jt,  on  the  part  of  the  prosecution,  hy  about  an  equal  nuinlx  r 
of  witnesses,  siuumoned  hy  the  United  ti^tatcs  from  St.  LouiH,  Louisvilh', 
Cincinnati,  NViiceliiig,  Niw  York,  Hoston,  Washington  City,  and  other 
places  ;  eighteen  mutilated  mail  hags  were  exhibited  upon  the  llcjor  of  the 
court-rooni,  I'liiil  thousands  of  dollars  of  his  stolen  treasure  placed  upon  tiie 
table.  The  mail  l»ags  and  portions  of  the  money  were  identified,  the  steal 
ing  proven,  guilt  established,  and  sentence  pronounced — notwithstanding, 
extensive  subornation  had  been  resorted  to,  and  the  most  alarrr.ing  perjur> 
perpetrated  in  his  behalf.  The  trial  was  conducted  with  great  legal 
ability — the  s|)eechcs  of  council  and  the  charge  of  .Fudge  Baldwin  occupied 
serciitrcn  Iidki's,  and  the  whole  are  published  in  the  language  of  the 
speakers. 

It  is  thought  that  this  Trial,  at  least,  should  be  in  the  bands  of  ever} 
lawyer,  every  mail-contractor,  every  stagt^-driver,  and  every  post-mast(!r  in 
the  UnitcMJ  States — as  the  report  of  McLpo(Vs  case,  doubtless  wi/l  be,  in  the 
hands  of  every  politician. 

All  Post  Maslcrs  arc  respectfully  requested  to  act  as  agents  for  thi« 
publication — to  obtain  subscriptions,  and  make  reunttances  for  tlieir  re- 
spective neighborhoods. 

Every  sixth  copy  of  the  work  will  be  allowed  for  obtaining  subscribers 
and  forwarding  the  money — that  is,  ii  five  copies  are  taken  and  paid  for, 
the  sixtii  will  be  free  ;  or  a  cash  commission  of  20  per  cent,  will  bt;  allowed 
on  all  sunis  transmitted  by  agents.  MARCUS  T.  C.  GOULD. 

Washingtox  Crrv,  D.  C,  Skpt.   1841. 


M 


N.  B. — All  communications,  by  mail,  must      ■  free  from  postage,  and 
addressed  Goulu's  Rki'OHTkk,  Washington  Citv,  ').  C. 


ADVERTISEMENT 


|i 


Altlioiiffh  it  is  well  known  that  mimfrouH  Reports  of  thi'  trial  of  At.F.XANnEi; 
Mcliioii  iiave  ai»pciiri'(l,  iti  tlio  coliiimis  of  tin,'  ii('\vs|)aj)i'rs  and  in  i)am|)hlt.'t 
foriii,  it  is  not  ho  well  known  that,  owing  to  phj>^i(;al  impossibilities,  these  re- 
ports wi're,  in  many  respects,  necessarily  abridged,  and  less  perti-ct  than  if  i)ro- 
«lnced  under  other  circiuiisfances. 

In  tlu!  first  place'  the  language  of  a  public  P])eaker,  one  hour,  if  recorded  in 
short  hand,  and  written  out  ni  long  hatid  tor  the  press,  retpiires  from  tiiur  to 
tivo  hours'  labor,  and  makes  about  half  a  (|uire  of  newspa])er  manuscript;  aiul 
as  th(!  court  at  Utica  was  in  si^shion  from  10  to  I'J  hours  each  day,  for  *i 
days,  it  was  out  of  the  jjower  of  any  one  man  to  i)re|)are  the  matter  of  eacli 
day,  for  the  first  evening  or  morning  mail,  to  New  N'ork.  Tiie  speeches  of 
one  single  day,  11  hours,  furnished  matter  l(:)r  more  than  HO  newspaper  co- 
hnmis,  to  coj)y  which  was  the  labor  of  at  least  a  week. 

How,  then,  wiiliout  much  jirevious  arrangement  and  concert  of  action,  for 
the  division  of  labor,  could  a  full  and  perfect  report  bo  producid,  as  the  trial 
proceeded  ?  All  was  done,  tliat  could  he  ilone,  and  the  result  was  placed  Im;- 
fore  the  public ;  but  a  work  still  remained,  and  that  work  is  here  i)resfnted. 

To  lessen  the  labor  of  writing  out,  personally,  the  whole  of  what  was  ex- 
jiected  to  pass  during  this  important  trial,  an  arrangement  was  made,  by  the 
hubscriber,  with  two  or  three  other  reporters,  to  exchange  an  occasional  speech 
rejjorted  by  himself,  for  an  e(piivalent,  from  their  notes  of  testimony. 

Though  this  arrangement  was  ]iin-sued  to  some  small  extent,  yet  the  under- 
signed failed  not  to  record  the  greater  i)art  of  the  testimony,  and  the  whole 
of  every  .speech  and  the  charge  of  the  court,  with  the  exception  of  one  hour  out 
of  seventeen  ;  for  the  supplying  of  which,  and  other  favors,  he  is  indebted  to 
the  politeness  of  Messrs.  Sutton,  and  Fowler,  stenographers. 

Portions  of  the  testimony  having  been  furnished  as  above  intimated,  will  ac- 
count for  the  occasional  change  from  first  to  third  person,  and  rice  versa,  as 
well  as  for  the  introduction  of  question  and  answer  in  some  parts,  while  in 
other  parts  tlie  (juestions  are  omitted.  This  applies  chiefly  to  small  portions 
of  the  testimony,  and  to  some  brief  di.scussions  between  the  counsel  on  oppo- 
site sides — and  even  these  items  have  been  generally  revised,  corrected,  and 
amplified  by  the  original  stenographic  notes  of  the  subscriber — though  their 
phra.seology  shows  the  work  of  different  hands. 

It  is,  notwithstanding,  confidently  believed,  that  nothing  es.sential  has  been 
omitted  which  coidd  give  greater  value  to  the  publication,  as  a  whole,  or  en- 
title it  to  fuller  confidence,  as  to  the  accuracy  of  the  licporl,  either  in  this  coun- 
try or  in  Hurope:  and  as  it  is  looked  for  with  considerable  interest,  not  only 
throughout  tlie  United  States,  but  in  Canada,  in  England,  and  other  parts  of 
the  British  Empire,  it  may  not  be  improper  to  state  at  the  clo.se  of  this  brief 
explanation,  that  Mr.  Harvey  Fowler,  a  well  known  stenographer  and  reporter 
in  the  Canadian  I'arliainent,  has  been  associated  with  the  subscriber  in  prepar- 
ing the  Report  which  is  here  submitted. 

To  the  court  and  its  officers — to  counsel  on  both  side.s— to  jurors,  witnesses 
and  the  public  it  is  submitted,  not  oidy  for  their  sanction  and  approval,  but  for 
their  patronage  and  support. 

MARCUS  T.  C.  GOULD. 
City  of  New  York,  Nov.  1, 1841. 


I 


>v 


ALEXANnEli 
ill  piilii|)hlt;t 
I'j^i  tlii'He  ru- 

tlmn  it' pro- 

rocordt'd  in 
roin  Jour  to 
iscript;  and 
diiy,  for  « 
Iter  of  eacli 

sp('(,'c}lus  of 

*'si)apfr  co- 

'  action,  for 
ais  tlie  trial 
placed  Ix;. 
'I'scntfd. 
at  was  ex. 
adc,  by  the 
mal  .spi'culi 

tlie  under- 

tliu  whole 

le  hour  out 

ndebted  to 

id,  will  ac 
e  versa,  as 
i,  while  in 
II  portions 
on  oppo- 
Rcted,  and 
'Ugh  their 

has  been 
3le,  or  en- 
Ihis  coun- 
»  not  only 
■  parts  of 
this  brief 
1  reporter 
n  prepar- 

witnesses 
d,  but  lor 

)ULD. 


CONTENTS. 


Prospectus  to  (Jould's  Reporter,    -         - 

Advertisement  to  vol. 'J  of  the  Reporter,  or 

The  Tfuai,  of  Adexander  McLeod, 

L'ourt,  otficers,  couni^el,  jurorn,  &c 

First  day  ok  the  tkial. 
Dpening  of  proceedings  at  Utica,  October  4th,  ly41,      - 
Organization  of  the  coin-t,  and  enipannelliiig  of  jury,     -      lx»,  13,  14, 
Indictment  of  Alexander  McLeod  for  the  irmrder  of  Amos  Durleo, 
by  the  Grand  Jury  at  Ixjckport,  Niagara  County,  State  of  New 

York,  February  1st,  1H41 

Attoknev-General's  opening  speech  commenced. 

Judge  Cowan's  decision  of  the  Supreme  Court  of  the  State  of  New 

Vork,  May,  1841,  as  read  by  the  Attorney-General, 
Attorney-General  resumes  and  concludes  his  opening  address,  - 
Test imomj  for  the  prosecution, 

William  Wells, .        . 

Second  Day. 
Daniel  J.  Stewart, 
Frederick  Emmons, 
J.  C.  Haggarty,       .... 


Henry  Emmons, 
John  Hatter, 
Joshua  A.  Smith, 
James  H:  King, 
Captain  Gilmau  Appleby, 
Samuel  Drown, 
Isaac  P.  Corson, 


Third  Day. 


Charles  Parke, 
Henry  Meyers, 
Calvin  Wilson, 
Elijah  D.  Effner, 
Seth  Hinman, 


t» 
10 

11 
15,  10 


17 
■il 

41 

45 

49 
51 
56 

57 
57 
58 
58 
59 
61 
64 


66 
71 

73 
75 

t76 


I 


^  CONTKNTS. 

SiirliH  Vatrn, 

William  W.  Caswrll.      . 

Arihoii  D.  i|iiinliy. 

.In>lii>  !•'.  'l'.  SirvoiiH,      - 

I.'onaid  Aiihoii, 
PrOMTiiiion  ifhtcd. 
Ml!.  Si'K.MKtt's  ()|)iiiin^'  npcoch  for  tho  priftonnr, 

Ft)UHni  Day. 
Ti'stimnny  fur  /lie  jfrixoiur. 

Aluxnnilcr  C.  Ilaniilton, 
Hewl(!tt  Lott, 
LaiiKJiig  VVtitnmn', 
Hanmcl  Drown, 
David  ('.  HiitcH,      - 
JniiicH  A.  Scort", 
Mil.  SpKM  r.ii's  romarkn  on  introiliiciiip  (lonmioiitary  t'vidont 
JiiKji:  (iKtDi.Ev'.s  remarks,  explanatory,  on  do. 
I)i.scui<Hion  oil  do.  in  wliicli  tho  Court,  tlui  Attornoy-( 

Spencer,  and  Mr.  Jlradley  partici|)ate,  paget; 
C'oinini.ssioii  for  taking  depositioiiH, 
Directions  to  comini.-^.sioners — interrogatorie^•,  &c., 
AtliUl ional  inlerrngalorivs,  by  way  of  croHH-c.xamiiiation,  t 
.Sir  Allan  McNali. 
Neil  Mc(irc'gor,       ... 
Depnsiliom  taken  by  nminiissinii — 
Sir  Allan  McNah, 
John  Harris 
Fidward  Zealand, 
William  H.  Light, 

Fifth  Day. 


piiera 


t,  Ml 
Ukj,  KM 


Robert  Armour. 

.lolui  Gordon, 
•  (Jhritstopher  Het^r, 

II.  R.  O'Reilly, 

Siiepherd  McCormick, 

Frederick  Cleverly, 

TJiomas  Hector, 

Neil  McGregor, 

J.  P.  BattcTt'by, 

Sixth  Day. 
Tealimomj  for  the  prisoner  continued. 

William  Press, 

John  W.  Morrii^on, 

Archibald  Morri.son, 

Margaret  Morrison, 

Harriet  Morrison, 


70 

7» 

m 

HI 

8.'» 


01 
»3 
04 

(M 
94 
05 
90 

1(»7,  1(1^^ 

lt«i 

IIH 
1-^ 

121 
129 

i;j4 

149 

146 
1.51 

150 
161 
168 
179 
ITT 
183 
184 


190 
191 
197 
196 
199 


'\ 


V 

I- 


CONTKNTS. 


70 
7»> 

8(1 
81 
8',' 

85 


01 
U» 
94 
94 
94 
OT) 
99 


Ktf) 
fr. 
«5,  I(»7,  KIN 

IW 

110 
1^) 

liJl 

lay 
i;j4 

I4() 

14fi 

151 

156 

161 

168 

179 

177 

183 

184 


190 
191 
197 
19S 
199 


f 


John  M(-I<*'ar), 
jHt(|M<r  T.  (■ilkiiiftitti. 


T 


4 


I 


Jari'il  St()(kiii>( 

Dnt't'iicc  ill  cliit't  I'loM'il  iiiid  proHocutioii  rt<bUiiifJ- 
I)'-j»)silumit  tnkfn  h</i>rr  Jimtirr  lltll. 

AlfVaiidiT  McLod't), 

.1.  VV.  M()|•ri^'Oll'.s, 

Arcliilialil  Morricon'ft 
Oi'imsilidns  Ink^n  hi'J'irrf  Jiiiliifi'.  Howrn. 

AloxiiiuItT  McLeod'H, 

Mar>,'iin!f  MorriMon'e. 

Ilnrrit't  MurriHoirf, 
Dqxmtiwis  taken  l>y  ronunissioii,  of" 

Dunniii  CaiiKTOti, 

Rit^ml  lii^'lJH, 
Testitiumy  /<rr  jrrosfculitm. 

Rev.  John  Marah, 

I'latt  Smith, 

John  C.  DavJH, 

I'Jiilo  Smith, 

J.  M.  Dyke, 

Timothy  Wheaton, 

William  Detield, 

J.  B.  Chubbuck, 

JoHuph  Hamilton, 

Joseph  Center, 

Andrew  Robiiifton, 

James  M.  Dyke,  rocnilpd, 
Close  of  proceedingd,  Saturday  cvoniiiK. 

Seventh  Day 
Mk.  Bradley's  address  to  the  Jury, 
Mr.  Spencer's  address  to  the  Jury, 
Mr.  Jenkins'  address  to  the  Jury, 

EiuHTH  Day. 

Attorney-General's  addre.''s  to  the  Jury, 

Judge  Gridley's  charge  to  the  Jury,  ... 

Documents,  &c. 

Mr.  Fox  to  Mr.  Webster, 

Mr.  Webster  to  Mr.  Fox, 

Argument  of  Mr.  Bradley  before  the  Supreme  Court  of  N.  Y 
Argument  of  Attorney-General  do  do  do 

Argument  of  Mr.  Spencer  do  do  do 

Message  of  Governor  Seward-  .... 


iJOTi 
•Jtr7 

','11 

•Jit 
•Jl.') 

216 

•I'M 

227 

22H 

aw 

228 
220 

2:m> 

231 
231 
231 
231 
231 

232 
247 

285 

305 
340 


3r.9 
361 
370 
381 
397 
415, 416 


k 


10 


TRIAL  OF  ALEXANDER  McLEOD. 


FOR    THE   MURDER   OF 


AMOS   DURFEE 


Circuit  Court,  5th  Judicial  District  of  the  State  of  New  York,  at 
Utica,  Oneida  County,  Oct.  4,  1841. 

Hon.  PHILO  GRIDLEY  Presiding, 

Sustained  by  Judges  White,  Kimball  and  Jones,  of  the  County  Courts 
of  Oneida,  though  having  no  voice  on  this  occasion. 


DAVID  MOIJLTON,  Esquire,  Sheriff'. 
P.  SHELDON  ROOT,  Esquire,  Clerk. 


'HERIFF'S   OFFICERS. 

Edward  Eames,   Under  Sheriff. 
Samuel  Hall,  Deputy  Sheriff. 


CONSTABLES    IN   ATTENDANCE. 


Clark  Potter, 
George  Hotchkies, 
Charles  Benedict, 
Samuel  Hall, 


Ephraim  Wilcox, 
Eli  Bridges, 
John  Sutton, 
Joseph  Merrill. 


COUNSEL  FOR  THE  PEOPLE. 


WILLIS  HALL,  Esquire,  Attorney-General. 
JONATHAN  L.  WOODS,  Esquire,  Diat.  Att'y  for  Niagara  county 
TIMOTHY  JENKINS,  Esquire,  Dist.  Att'y  for  Oneida  county. 
SETH  C.  HAWLEY,  Esquire,  of  Buffalo. 


COUNSEL   FOR   PRISONER. 


JOSHUA  A.  SPENCER,  Esquire,  United  States  District  Attorney. 
HIRAM  GARDNER,  Esquire,  of  Lockport. 
ALVIN  C.  BRADLEY,  EsQuire,  of  Lockport. 


j:!7k^. 


rjpn 


I 


u 


D. 


V  York,  at 


inty  Courts 


I? 


2. 
3. 
4. 
5. 


COURT    ROOM, 

UTICA,    MONDAY    MOPuNING,    OCTOBKR    4j    1S41. 

In  pursuancu  of  arrangements  previously  made  and  publislied  by  tlic 
City  Council,  under  the  advice  of  the  Court,  to  prevent  confusion  on  the 
present  occasion,  the  following  order  of  admission  to  the  court-room  was 
observed,  viz. 
"1.  The  Members  of  the  Court. 

The  Members  of  the  Rar  and  Reporters. 
The  Prisoner,  and  Constables  who  attended  l)im. 
The  .Fury  drawn  to  try  him. 
The  Witnesses,  who  had  a  scat  by  themselves. 
6.  Citizens  generally." 

A  large  number  of  constables  and  special  deputies  were  in  attendance 
at  the  outer  door  and  in  the  court-room,  and  other  precautions  taken  to  in- 
sure the  most  perfect  order  and  decorum,  not  only  while  assembling,  but 
throughout  the  sittings. 

A  few  minutes  past  nine  o'clock,  .ludgc  Gridley  entered  the  Court,  at- 
tended by  the  usual  Common  Pleas  Ju(lg(\s  of  Oneida  county  (who,  how- 
ever,  take  no  part  in  this  trial,)  and  the  counsel  engaged  in  the  case, 
tbllowed  by  the  bar  generally.  The  jurors  were  next  arlmitted  ;  and 
when  they  were  seated,  the  witnesses  were  accommodated  with  seats. 
The  spectators  next  entered  in  a  very  orderly  manner,  which  reflects 
credit  on  those  who  conceived  and  carried  out  the  arrangements  and 
regulations.  There  was  no  rushing  for  the  sc:ats,  but  every  one  entered 
as  demurely  as  though  the  court  were  a  parish  church.  No  more  were  ad- 
mitted than  could  be  comfortably  seated  ;  and,  indeed,  no  more  appeared 
desirous  to  be  present.  Persons  at  a  distance,  who  have  been  wrought  up 
to  a  feverish  excitement  on  this  subject,  will  be  astonished  at  the  apparent 
apathy  felt  here. 

•  At  fifteen  minutes  to  ten  o'clock,  the  crier  opened  the  court  with  the 
usual  formality,  and 

Mr.  Wood,  district  attorney  for  the  county  of  Niagara,  applied, to  the 
court  for  an  attachment  against  Theodore  Stone,  of  Lock[)ort,  sherifi'  of 
the  county  of  Niagara,  for  disobedience  to  a  subpoena  sc-rved  upon  him 
on  the  27th  ult.,  to  appear  at  this  court  as  a  witness  for  the  prosecution. 

The  court  made  the  order. 

A  few  minutes  before  ten  o'clock  the  prisoner  was  brought  into  court, 
walking  deliberately  to  a  seat  within  the  bar,  near  his  counsel.  He  was 
dressed  neatly  in  a  suit  of  black,  and  was  wrapped,  as  he  entered,  in  the 
ample  folds  of  a  blue  cloak.  His  counsel  shook  him  cordially  by  the 
hand,  and  he  gracefully  returned  the  salutations  of  others.  He  is  a  man 
of  gentlemanly  bearing  and  demeanor,  and  he  appeared  respectful  but 
not  embarrassed. 


'1^1 


p  • 


f 


r 


i:. 


•I 


12  GOirLD'.S    REl'ORTKR. 

Judge  Gridlcy- — Mr.  Hull,  are  you  ready  in  the  case  of  the 
PEOPLE  OF  THE  STATE  OF  NEW  YORK 

VERSUS 

ALEXANDER  McLEOD? 

Mr.  Hall,  Attorncy-Oenorul — (with  whom  were  associated,  for  the  prose- 
(.'ution,  Mr.  .Fnikiiis,  District  Attorney  for  Oneida  county,  Mr.  Wood,  Dis- 
trict Attorney  for  the  county  of  Niagara,  and  Mr.  Seth  C.  Huwiey,  of 
BulTalo) — If  the  court  please,  I  move  on  the  cause. 

.'udgc  (Iridley. — Arc  you  ready,  Mr.  Spencer? 

Mr.  Spencer — (with  whom  were  associated  IMr.  Bradley  and  Mr.  Gard- 
ner)— \Vc  arc  ready. 

.luflge  Gridley. — Then  wo  will  proceed  with  the  case,  and  as  the  clerk 
calls  the  names  of  the  jurors,  they  will  advance  to  be  sworn. 

Mr.  Root,  the  clerk  of  the  court,  called  the  prisoner,  who  rose  and  was 
informed  by  the  clerk  of  his  right  to  challenge. 

Charles  O.  Curtis  of  Paris,  was  the  first  juror  called. 

Mr.  Spencer  to  the  Attorney. General. —Do  you  purpose  to  put  an\ 
question  generally  to  the  jurors  ? 

Mr.  Hall. — Yes.  (To  the  juror.)  Mr.  Curtis,  have  you  formed  or  ex- 
jtressed  any  opinion  as  to  the  guilt  or  inncicence  of  the  prisoner '? 

Mr.  Curtis. — 1  have  not. 

Mr.  Hall. — Have  you  any  conscientious  scruples  on  the  subject  of 
giving  a  verdict  involving  life  .' 

Mr.  Curtis. — No,  sir. 

Judge  Gridley. — Let  him  be  sworn. 

Mr.  Hall. — 1  will  ask,  if  the  court  please,  one  further  question.  (T<» 
the  juror.)  Do  you  entertain  an  opinion  founded  on  motives  of  public 
policy,  or  otherwise,  that  the  prisoner  ought  to  be  exonerated  from  punish- 
ment, whether  he  participated  in  the  burning  of  the  Caroline  and  the  mur- 
der of  Durfee  or  not  ? 

Mr.  Spencer. — That  is  a  new  question. 

"Mr.  Curtis. — I  feel  desirous  that  justice  should  be  done.  I  have  formed 
no  opinion. 

Judge  Gridley. — It  strikes  me,  that  where  a  juror  is  interrogated  in 
this  fo.rmal  way,  if  he  answers  that  he  has  formed  no  opinion,  and  that  he 
has  no  conscientious  scruples  on  the  subject  of  giving  a  verdict  which  ma^■ 
involve  the  life  and  death  of  the  prisoner,  the  whole  ground  is  covered. 

The  juror  w  as  then  sworn. 

Edmund  Allen,  of  Augusta,  answered  properly  and  was  sworn. 

John  Mott,  another  juror,  said  he  felt  as  if  it  was  his  duty  to  be  govern- 
ed by  the  evidence. 

Joseph  Cauldwell,  of  Whit(  sborough,  had  conscientious  scruples  on  the 
subject  of  capital  punishments. 

Mr.  Hall. — You  may  stand  aside. 

Judge  Gridley. — What  arc  those  scruples  ? 

Juror. — I  never  felt  willing  to  bring  a  man  in  guilty  where  the  law  pro- 
nounces the  punishment  of  death. 

Judge  Gridley. — I  think  it  is  better  you  should  stand  aside ;  but  it  is  no 
portion  of  a  juror's  business  to  look  to  consequences. 


i 


V' 

h 


stol 
feel 
to 

t>) 
iut 


MCLEOD  S    TRIAL. 


13 


K 


x)r  tlic  prose - 

■  ^Vood,  Dis- 

Hawley,  of 


d  Mr.  Gard- 
as  tlic  clerk 
3se  and  was 

to   put  any 

med  or  ex- 
l 

subject   of 


ion.  (T., 
of  public 

m  punisli- 
the  mur- 


^c  formed 

5irated  ill 
d  that  he 
!iich  nvn 
vered. 


govern- 
s  on  fhc- 

a\v  pro. 
it  is  no 


1 


ll 


,1 

i 


Mr.  Jenkins. — The  statute  makes  it  cause  of  challenge,  if  your  llonoi- 
plea.se. 

Th((  juror  was  told  to  stand  aside. 

.\shley  Hills,  farmer,  of  Kirkland,  was  next  called. 

Mr.  Spencer. — Challenged. 

Tiie  juror  was  put  aside. 

Elijah  Hrush,  of  Rome,  was  next  called,  and  the  usual  questions  were 
put  on  the  subject  of  conscientious  scruples. 

Judge  Gridley  said  the  question  was  a  proper  one,  when  it  was  under- 
r^tood.  It  was  not  meant  that  a  juror  should  be  excused  because  lie  migiu 
feel  pain  on  returning  such  a  verdict,  but  that  it  was  a  matter  of  duty  not 
to  return  a  verrlict  involving  life  by  the  law  of  the  land. 

Mr.  Hall. — How  do  you  answer  ?  Would  you  find  a  verdict  according 
to  the  evidence  on  the  guilt  or  lnnoc(;nce  of  the  prisoner  in  a  capital 
indictment  ? 

Juror. — Certainly. 

Mr.  Hall. — Swear  the  juror. 

Royal  Rijbbins,  of  Marcy,  said  he  had  formed  no  opinion  further  than 
he  hoped  that  justice  would  be  done.  He  had  not  made  up  his  mind  as  to 
what  justice;  was. 

Mr.  Spencer. — He  may  .stand  aside. 

Roswell  T.  Eastman,  of  Paris,  was  excused,  being  too  unwell  to  set  aa 
a  juror. 

Ira  Hyington,  of  Camden,  was  sworn.    Also  Wm.  Carpenter,  of  Kirkland. 

John  Swann,  jun.,  of  We.ston,  did  not  answer. 

Edward  Scoville — I  wish  to  be  excused  on  the  ground  that  I  have 
doubted  the  policy  of  inflicting  capital  punishment. 

He  was  excused. 

Luther  Shepherd,  of  Verona,  was  challenged. 

Josiah  Thurbcr,  of  Utica,  answered  the  questions  satisfactorily  that 
were  put. 

-Mr.  Hall  desired  that  this  juror  might  stand  aside  until  the  panel  was 
exhausted.  He  believed  it  was  a  common  law  right,  although  they  had 
lio  peremptory  challenge. 

Mr.  Spencer — You  have  no  such  right. 

Mr.  Hall  argued  that  he  had  the  right  to  put  a  juror  aside,  until  the 
whole  [lanel  was  exhausted,  and  then,  if  it  were  necessary  to  call  t!ic  same 
juror,  li'j  could  only  bo  put  aside  on  cause  shown. 

Judge  Gridley — It  is  a  qualified  peremptory  challenge  Is  there  any 
objection  ? 

Mr.  Spencer — I  never  heard  of  such  a  right  before,  it  is  much  more 
than  a  qualified  cliallenge,  and  they  may  thus  ask  that  thirty-six  jurors  may 
stand  aside,  while  the  prisoner  has  the  right  to  challenge  but  twenty. 

Mr.  Hall  said  a  decision  had  been  mudi;  in  a  similar  case  in  the  t'nited 
States  Supreme  Court,  in  the  case  of  the  United  States  v.  V/ilson  aiu! 
I'orter,  which  was  tried  before  Judge  Baldwin,  of  Pennsylvania,  Mr.  Dallas, 
in  that  case,  claimed  the  right,  and  it  was  contested,  upon  tlie  ground  th.'U 
there  was  no  peremptory  challenge  allowed  by  the  laws  of  Pennsylvania. 

The  opinion  of  the  Supreme  Court,  delivered  in  the  above  case,  is  as 
I'ollows : — 

The  court  observed  that  they  had  known  no  case  where  the  right  ikjw 
claimed  had  been  allowed  to  the  prosecution.    That  they  would  not  be  the 


14 


GOULDS    REPORTER. 


fi} 


('!t 


!  I 


first  to  do  it  in  a  capital  case,  unless  it  was  clearly  establisheii ;  but  that,  on 
exniuinin^  the  ()|)iiiioii  of  tlie  Supremo  Court  in  the  casi;  of  the  United 
States  V.  iMarcliatit  and  Colsuii,  U?  Wlieaton,  480,  484,  48o,  they  did  not 
liM'l  themselves  at  liberty  to  refuse  the  qualified  right  of  challenge  now 
claimed  by  the  I'nitcd  States.  The  law  as  laid  dawn  by  that  court  is,  that 
in  England  tin:  crown  had  an  acknowledged  right  of  peremptory  challenge 
before  the  statute  of  M  Edward  1.,  which  took  it  away  and  narrowed 
the  riglit  down  to  that  for  cause  shown  ;  but  that  an  uniform  practice  had 
prevailid  ever  since^down  to  the  present  time,  to  allow  a  conditional  and" 
(|ualili«d  exeruise  of  that  right,  if  other  sufficient  jurors  remained  for  tho  " 
trial,  by  not  compelling  the  crown  to  show  cause  at  the  time  of  the  objec. 
tion  taken,  but  to  put  aside  the  juror  until  the  whole  panel  is  gone  through, 
so  that  it  appears  there  will  not  be  a  full  jury  without  the  person  chal- 
longed. 

That  the  right  of  peremptory  challenge  allowed  the  prisoner  was  not 
to  select  the  jury  who  were  to  try  him,  but  merely  to  reject  such  as  he 
pleased,  though  he  could  assign  no  reason  for  so  doing,  and  that  the  court 
would  not  inquire  into  what  was  the  United  States'  prerogative,  but  simply 
what  was  the  common  law  doctrine.  The  court  considering  the  opinion 
of  the  Supreme  Court  as  a  recognition  of  the  qualified  right  of  the  United 
States  to  challenge,  direct(!(l  the  juror  to  be  put  aside  till  the  panel  was 
exhausted,  declaring  that  if  that  should  happen,  and  the  juror  be  called 
again,  Th(>  United  States  could  not  challenge  him  without  showing  cause. 
Baldwin's  Rep.  p.  8xi. 

The  authority  referred  to  in  the  above  opinion  of  the  Supreme  Court 
is  as  follows  : — 

Until  the  statute  of  33  Edward  I.  the  crown  might  challenge  pcrempto-  . 
rily  any  juror,  without  assigning  any  cause ;  but  that  statute  took  away 
that  right,  and  narrowed  the  challenges  of  the  crown  to  those  for  cause 
shown.  But  the  practice  since  this  statute  has  uniformly  been,  and  it  is 
clearly  settled,  not  to  compel  the  crown  to  .show  cause  at  the  time  of  ob- 
jection taken,  but  to  put  aside  the  juror  until  the  whole  panel  is  gone 
through.  Hawkins  on  this  point  says  (PI.  Cr.  b.  2,  ch.  43,  §2,  §3,)  "  if  the 
king  challenge  a  juror  before  the  panel  is  perused,  it  is  agreed  that  he 
need  not  shuw  any  cause  of  his  challenge  till  the  whole  panel  be  gone 
through,  and  it  appears  that  then;  will  not  be  a  full  jury  without  the  per.son 
.so  challen'jed.  And  if  the  defendant,  in  order  to  oblige  the  kino;  to  .show 
cause,  presently  challenge  '  louts  par  availe,'  yet  it  hath  iieen  adjudged 
that  the  defendant  sludl  be  first  put  to  show  all  his  causes  of  challenge  be- 
fore the  kiiiy  need  to  show  any.''  And  the  learned  autlutr  is  fullv  borne 
out  by  the  authorities  which  ht;  cites,  and  the  same  rule  has  been  recog- 
nized down  to  the  present  times. 

The  Attorney-CTcneral  also  quoted  the  following  from  Chitty's  Criminal 
Law,  vol.  .'),  p.  533  : — 

The  challenge  to  the  array  or  the  polls  may  be  made  either  by  the 
crown  or  the  defendant. 

On  the  part  of  the  former  it  seems  that  at  common  law  any  number  of 
jurors  might  have  been  peremptorily  challenged,  without  alleging  any  other 
rca.son  fur  the  objection  than  ••  quod  non  boni  sunt  j)ro  rege." 

This  power,  however,  being  found  very  liable  t»  abuse,  was  taken  away 
by  the  33  Edward  I.  stat.  4,  conimonly  called  ordinatio  do  incpiisitionibus. 
which  has  been  construed  to  extend  to  criminal  as  well  as  civil  proceed- 


n 


1 


ffi 

'Ht' 

ii\ 


—-—~rr: 


Mcleod's  huAL. 


l-f 


;  but  that,  oi) 
f  tlic    Ul)iti;il 

tlicy  did  nor 
allfiigo  now 
court  is,  tliat 
rycliallcngc 
id   narrowed 
imctice  had 
itlitional  and' 
inod  for  tlio  ' 
)i"  the  objoc. 
)nc  through, 
Jt-rson  chuil. 

lor  was  not 

such  as  ho 

at  the  court 

)  hut  simply 

the  opinion 

the  United 

p;tiiei  was 

r  he  called 

ving  cause. 

remc  Court 

;  pcrcmpto- 
took  awa}- 
!  for  cause 
1,  !ind  it  is 
time  of  oh- 
cl   is  ijonc 
3,)  "if  the 
ed  tliat  he 
'I  be  gone 
the  person 
g  to  show 
adjudged 
illenge  be. 
ully  borne 
-'en  rccog. 

I  Criminal 

31'  by  the 

lumber  of 
any  other 

ien  away 
itionibas. 
proceed. 


in<Ts,  and  the  same  provision  is  to  be  found  in  the  G  George  IV.  c.  50. 
But  under  a  similar  provision  in  a  prior  statute,  it  was  agreed  tliat  th»; 
crown  is  not  compelled  to  show,  any  cause  of  challenge  luitil  the  panel  is 
gone  through,  so  that  it  may  jrjjpear  that  there  will  not  he  suilieient  to  try 
the  prisoner  if  the  peremptory  objection  is  permitted  to  prevail.  And  it 
has  been  also  holden,  thrjf  if  the  defendant,  in  order  to  oblige  the  king  to 
show  cause,  challenge  the  'louts  paravailc,'  he  must  first  .show  all  his 
causes  of  objection,  before  the  king  can  bo  called  upon  to  show  the  grounds 
of  his  challenge.  .Vnd  it  is  quite  clear  that  the  i)rosecutor  may  challenge 
the  array  or  tlie  polls  for  cause  shown,  in  the  same  way  as  the  defendant. 

Mr.  Spencer,  in  reply,  said  this  was  the  first  time  in  thrr  whole  eour.'ie 
jj  of  his  practice  that  he  had  ever  heard  of  such  a  proposition  being  made, 
J>f  and  insisted  on  by  the  prosecution.  It  was,  he  said  in  fact,  a  (jualiiicd 
peremptory  challenge  which  belonged  of  right  to  the  prisoner  alone,  and 
to  support  iiis  objections  he  cited  2  R.  S.  p.  41,  sec.  61,  and  2  R.  S.  p. 
615,  .sec.  9.  •'  Every  person  arraigned  and  put  on  his  trial  lor  any  offence 
punishable  with  death,  or  with  imprisonment  in  a  state  prison  for  ten  years 
or  any  longer  time,  shall  be  entitled  peremptorily  to  challenge  twenty  of 
the  persons  drawn  as  jurors  for  sucli  trial,  and  no  more." 

Judge  Gridley,  in  deciding  on  the  proposition,  said, — In  a  case  where 
the  common  law  recognizes  a  right,  although  the  fact  be  that  no  attempt 
has  been  hitherto  made;  by  a  [)ublic  prosecutor  to  avail  himself  of  that  right, 
it  is  not  consequent  that  it  should  not  be  awarded  to  him,  if  he  does  avail 
himself  of  it.  But  it  has  not  been  shown  that  the  statute  recognizes  this 
right.  I  see  no  reason  why  this  common  law  right  should  have  been  pre. 
served  to  the  king,  after  the  statute  took  it  away  from  him.  But  it  seems 
tl]at  it  was  so,  and  that  it  was  part  of  the  common  law  which  cumc  down 
to  us  at  the  time  of  tlie*  revolution.  But  so  far  as  I  can  see,  the  provisions 
of  our  statutes  have  trenched  on  this  common  law  right.  Tlie  statute 
points  out  how  juries  should  be  empanelled  in  civil  and  criminal  cases, 
and  unless  some  of  them  arc  set  aside  for  cause  shown,  or  by  jien.'mptoiy 
challenge,  the  rule  is  distinctly  prescribed,  that  tlie  first  twelve  men  called 
shall  constitute  the  jury.  I  therefore  decide  the  ([uestion,  that  the  peoj)le 
have  not  the  right  to  have  jurors  set  aside  until  the  panel  is  exhausted, 
and  the  juror  must  be  sworn  unless  challenged  or  set  aside  for  cause 
shown. 

The  juror  was  then  sworn. 

Henry  Addington,  of  Paris,  farnK.r,  had  rcligiou.s  scruples,  and  was  put 
aside. 

Peter  Sleight,  of  Westmoreland,  was  sworn. 

Henry  Hayter,  of  Kirkland,  was  challenged. 

David  Tuttle,  of  Broomville,  was  challenged. 

Asher  Allen,  of  Augusta,  was  sworn. 

Seymour  Carrier,  of  Steuben,  was  sworn. 

Amasa  Barnes  did  not  answer. 

Thomas  Noonan,  of  Amsville,  was  challenged. 

Jonathan  House  did  not  answer. 

Joseph  Davis,  of  Remscn,  was  challenged. 

Joseph  Seymour,  of  Western,  was  challenged. 

Henry  D.  Babcock,  of  Marcy,  was  challenged. 

Eseck  Allen,  of  Floyd,  was  sworn. 


H 


16 


fiOULD'S   REPOKTER. 


I 


Stephen  Northrup,  of  Marcy,  was  excused,  being  too  unwell  to  cncoun- 
ter  this  trial. 

Levy  Yale,  of  Augusta,  was  challenged. 

VoIn<'y  Elliott,  of  Kirkland,  was  sworn. 

The  jury  being  now  complete, 

.hulgo  (iridlcy  directed  the  sheriff  to  provide  lodgings,  and  places  to 
lake  tlu'ir  meals,  for  the  jury,  as  it  would  be  necessary  to  keep  them  toge- 
ther during  the  whole  of  the  trial,  and  to  provide  them  with  acconimoda- 
ti(jns  as  near  the  court  as  possible. 

The  .sheriff  promised  that  it  should  be  done. 

The  following  is  the  jury  complete,  as  sworn,  viz. 

1.  Charles  O.  Curtis,  farmer,  Paris. 

2.  Edmund  Allen,  physician,  Augusta. 

3.  .lohn  Mott,  merchant,  Sangerfield.  .  • 

4.  Elijah  Brush,  farmer,  Rome. 

5.  Ira  Byington,  farmer,  Camden.  - 

6.  William  Carpenter,  farmer,  Kirkland. 

7.  Isaiah  Thurber,  merchant,  Utica. 

8.  Peter  Sleight,  farmer,  Westmoreland. 

9.  Asher  Allen,  farmer,  Augusta. 

10.  Seymour  Carrier,  farmer,  Steuben. 

11.  Eseck  Allen,  farmer,  Floyd. 

12.  Volncv  Elliott,  farmer  Kirkland. 


I  if 


« 


M 


n 


illi^ 


..'.'  -      —  - 


'ell  to  encoiin- 


ind  places  to 

Lip  them  togc- 

acconimofia- 


I 


INDICTMENT. 


At  a  Court  of  General  Sessions  of  the  Peace,  holden  at  the  Court  House 
in  the  town  of  Lockport,  in  and  for  the  county  of  Niagara,  on  the  first  day 
of  February,  in  the  year  of  our  Lord  one  thousand  eiglit  hundred  and  forty- 
one,  before  Washington  Hunt,  Levi  F.  Bowen,  Lathrop  Cook,  and  Hiram 
McNeil,  Esquires,  Judges  of  the  County  Courts  for  the  said  county  of 
Niagara,  assigned  to  keep  the  peace  in  the  said  county  of  Niagara,  and 
also  to  inquire,  by  the  oath  of  good  and  lawful  men  of  the  said  county,  of  all 
crimes  and  misdemeanors  committed  or  triable  in  said  county,  and  to  hear 
and  determine,  and  punish,  according  to  law,  all  crimes  and  misdemeanors 
not  punishable  with  death,  or  imprisonment  for  life  in  the  State  Prison,  and 
to  exercise  such  other  powers  and  duties  as  may  be  conferred  and 
imposed  by  the  laws  of  this  State,  and  duly  authorized  to  hold  the  said 
Court : 

NL\GARA  COUNTY,  ss. 

The  Jurors  for  the  people  of  the  State  of  New  York,  and  for  the  body 
of  the  county  of  Niagara,  to  wit :  Charles  L.  Safford,  Joseph  Cleveland, 
James  Crownoon,  George  Curtis,  James  Field,  Andrew  Pease,  Erastus 
Odell,  Warner  Green,  James  Tompkins,  Hunt  Farnsworth,  John  Jeffrey, 
Warren  Carpenter,  Truman  Roberts,  Jesse  Huntley,  Moses  Beech,  Alfred 
Pool,  and  Henry  P.  Trobridge,  good  and  lawful  men  of  the  said  county  of 
Niagara,  then  and  there  being  empannelled,  sworn  and  charged  to  inquire 
for  .the  people  of  the  State  of  New  York,  and  for  the  body  of  the  county 
of  Niagara,  upon  their  oaths  present — That  Alexander  McLeod,  late  of 
the  province  of  Upper  Canada,  not  having  the  fear  of  God  before  his  eyes, 
but  being  moved  and  seduced  by  the  instigation  of  the  devil,  on  the 
thirtieth  day  of  December,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  thirty-seven,  with  force  and  arms  at  the  town  of  Niagara,  in 
the  county  of  Niagara,  aforesaid,  on  and  upon  one  Amos  Durfee,  in  the 
peace  of  God,  and  of  the  people  of  the  State  of  New  York,  then  and  there 
being,  feloniously,  wilfully,  and  in  his  malice  aforo thought,  and  with  a 
premeditated  design  to  effect  the  death  of  the  said  Amos  Durfee,  did  then 
and  there  make  an  assault  upon  the  said  Durfee,  and  that  the  said 
Alexander  McLeod,  with  a  certain  gun  of  the  value  of  five  dollars,  then 
and  there  loaded  and  charged  with  gunpowder  and  one  leaden  bullet, 
(which  the  said  Alexander  McLeod,  in  his  right  hand,  then  and  there  had 
and  held,)  to,  against,  and  upon  the  said  Amos  Durfee,  then  and  there 
feloniously,  and  wilfully,  and  of  his  malice  aforethought,  and  with  a  pre- 
meditated  design  to  effect  the  death  of  the  said  Amos  Durfee,  did  shoot 
and  discharge,  and  the  said  Alexander  McLeod,  with  the  leaden  bullet 
aforesaid,  out  of  the  gun  aforesaid,  then  and  there  by  force  of  the  gun- 
powder, and  shot  sent  forth  as  aforesaid,  the  said  Amos  Durfee,  in  and 
upon  the  back  part  of  the  head  of  him  the  said  Amos  Durfee,  a  little  above 
the  neck  of  the  said  Durfee,  then  and  there  feloniously,  wilfully,  and  of  his 
malice  aforethought,  and  with  a  premeditated  design  to  effect  the  death  of 

3 


H 


ri 


r. 


PI 


f  i  i|' 


L 


I  Hi 


h: 


ill 


19 


GOULD'S  REPORTER. 


the  said  Amos  Durfcc,  did  strike,  penetrate,  and  wound,  giving  to  the  said 
Amos  DurCee,  tlicn  and  there  with  the  leaden  bullet  aforesaid,  so,  as  afore- 
said,  shot,  discharged  and  sent  forth,  out  of  the  gun  aforesaid,  by  the  said 
Alexander  McLeod,  in  and  upon  the  back  p^t  otthe  head  of  him,  the  said 
Amos  Durfee,  one  mortal  wound,  the  said  Durfce,  then  and  there  on  the  said 
thirtieth  day  of  December,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  thirty-seven,  aforesaid,  at  the  said  town  of  Niagara,  in  the  said 
county  of  Niagara,  did  languish,  and  languishing,  did  die,  and  so  the  Jurors 
aforesaid,  upon  their  oaths  aforesaid,  do  say  that  the  said  Alexander  McLeod, 
the  said  Amos  Durfee,  in  manner  and  form  aforesaid,  feloniously,  wilfully, 
and  of  his  malice  aforethought,  then  and  there  did  kill  and  murder,  against 
the  peace  of  the  people  of  the  State  of  New  York,  and  their  laws  and  dignity. 

2d  Count — Presents  that  Alexander  McLeod,  killed  Amos  Durfee,  at 
the  time,  place,  and  manner,  as  specified  in  the  first  count,  with  a  pistol. 

3d  Count — Presents  that  John  Mosier  committed  the  crime  of  murder ; 
and  that  Alexander  McLeod  was  accessory  before  the  fact ;  and  that  the 
deed  was  done  with  a  pistol. 

4th  Count — Presents  that  the  murder  was  committed  by  certain  evil  dis- 
posed  por^'ons  to  the  Jurors  unknown,  and  that  Alexander  McLeod  was 
accesso.y  before  the  fact ;  and  that  the  deed  was  done  with  a  pistol. 

5th  Count — Presents  that  Tliomas  McCormick  committed  the  crime  of 
murder,  and  that  Alexander  McLeod  Mvaa  accessory  before  the  fact  j  and 
that  the  deed  was  done  with  a  gun. 

6th  Count — Presents  that  the  crime  of  murder  was  committed  by  certain 
evil-disposed  persons,  to  the  Jurors  unknown  ;  and  that  Alexander  McLeod 
WEis  accessory  before  the  fact ;  and  that  the  deed  was  done  with  a  gun. 

1th  Count — Presents  that  Rolland  McDonald  committed  the  crime  of 
murder ;  and  that  Alexander  McLeod  was  present,  aiding  and  abetting ; 
and  that  the  deed  was  done  with  a  pistol. 

8th  Count — Presents  that  the  crime  of  murder  was  committed  by  John 
Mosier ;  and  that  Alexander  McLeod  was  present,  aiding  and  abetting ; 
and  that  the  deed  was  done  with  a  gun. 

9th  Count — Presents  that  the  crime  of  murder  was  committed  by  certain 
evil-disposed  persons,  to  the  Jurors  unknown,  that  Alexander  McLeod  was 
present,  aiding  and  abetting ;  and  that  the  deed  was  done  with  a  pistol. 

10th  Count — Presents  that  the  crime  of  murder  was  committed  by  certain 
evil-disposed  persons,  to  the  Jurors  unknown ;  and  that  Alexander 
McLeod  was  present,  aiding  and  abetting ;  and  that  the  deed  was  done 
with  a  gun. 

llth  Count — Presents  that  the  crime  of  murder  was  committed  by  certain 
evil-disposed  persons,  to  the  Jurors  unknown,  and  that  Alexander  McLeod 
was  present,  aiding  and  abetting  ;  and  that  the  deed  was  done  with  certain 
instruments  and  deadly  weapons  to  the  Jurors  unknown. 

\2th  Count — Presents  that  Alexander  McLeod  and  divers  other  evil-dis- 
posed persons,  to  the  Jurors  unknown,  &c.,  wickedly  devising  and  intending 
to  oppress,  injure,  and  prejudice  one  William  Wells,  and  to  injure,  damage, 
and  destroy  his  personal  property,  seized  and  destroyed  his  steamboat 
called  the  Caroline,  in  a  manner  dangerous  to  the  lives  of  persons ; ,  and 
that  the  deed  was  done  with  deadly  weapons. 

19th  Count — Presents  that  Alexander  McLeod,  and  divers  other  pevsons, 


I 


to 

stoi 

(le( 


Cai 
was 

dis 


MCLEOD  S  TRIAL. 


19 


■ing  to  the  said 
id,  so,  as  nlbre- 
iid,  by  the  said 
i'  lum,  the  said 
icicon  thcsaid 
housiand  eight 
ira,  in  the  said 
i  so  the  Jurors 
inder  McLeod, 
)usly,  wilfully, 
lurdcr,  against 
vs  and  dignity. 
OS  Durfee,  at 
with  a  pistol. 
le  of  murder ; 
;  and  that  the 

jrtain  evil  dis- 
McLeod  was 
a  pistol. 

the  crime  of 
the  fact ;  and 

ed  by  certain 
uder  McLeod 
vith  a  gun. 

the  crime  of 
nd  abetting  J 

itted  by  John 
nd  abetting ; 

;d  by  certain 
McLeod  was 
h  a  pistol. 
ed  by  certain 
Alexander 
id  was  done 

d  by  certain 
der  McLeod 
with  certain 

her  evil-dis- 
nd  intending 
ire,  damage, 
steamboat 
|!i-sons  :  and 


i 


to  the  Jurors  unknown,  tS.:c.,  conspired  together,  (fcc,  to  destroy  tin- 
steamer  Caroline,  the  property  of  the  said  Williunj  Wells ;  and  that  the 
deed  was  dune  with  a  gun. 

mh  Count — Presents  that  ^oxander  McLeod,  in  destroying  the  stoanmr 
Caroline,  the  property  of  the  said  William  Wells,  caused  the  death  of  the 
said  Amos  Uurfee  ;  and  that  the  deed  was  done  with  a  gun. 

I5th  Count — Presents  that  Alexander  McLeod,  in  destroying  the  steamer 
Caroline,  caused  the  death  of  the  said  Amos  Durfee ;  and  that  the  deed 
was  done  with  a  pistol. 

IQtIi  Count — Presents  that  Alexander  McLeod,  with  divers  other  evil- 
disposed  persons,  intending  to  deprive  the  said  William  Wells  of  his  pro- 
perty, *S£c.,  committed  the  crime  of  murder,  and  that  the  deed  was  (lone 
with  dicers  instruments,  tools,  and  deadly  weapons,  unknown  to  the  Jurors. 

nth  and  last  Count — Presents  that  Alexander  McLeod,  with  divers  other 
evil-disposed  persons,  to  the  Jurori  unknown,  conspiring  to  injure  the  said 
Wells,  and  to  commit  the  crime  of  arson,  did  commit  the  crime  of  murder, 
by  producing  the  death  of  the  said  Amos  Durfee,  with  divers  instruments, 
tools,  and  deadly  weapons,  to  the  Jurors  unknown. 

(Signed)  J.  L.  WOODS,  District  Attorney. 

[Indorsed.]  Niagara  General  Sessions,  February  Term,  1841.  The 
People  vs.  Alexander  McLeod  ;  Indictment,  murder.  J.  L.  Woods,  Dis- 
trict Attorney.     A  true  bill — C.  L.  Safford,  foreman  j  Filed  July  6, 1841. 


EXPLANATORY    NOTE. 

For  the  information  of  persona  not  familiar  with  the  history  of  this  case,  the  follow, 
ing  is  deemed  appropriate  in  this  place,  viis: — On  the  evening  of  the  29th  day  of  Decem- 
ber, 1837,  a  steain  vessel  called  the  Caroline,  belonging  to  one  William  Wells,  a  citizen 
of  Buffalo,  State  of  New  York,  was  lying  in  the  Niagara  river,  alongside  of  the  wharf  at 
Schlosser,  in  the  county  of  Niagara,  and  had  on  board  a  number  of  our  citizens.  At 
that  time  a  civil  commotion  prevailed  in  the  Canadas,  and,  as  it  is  alleged,  the  Caroline 
had  been  used  to  carry  arms  and  munitions  of  war  from  the  shores  of  the  State  of  New 
York  to  an  insurrectionary  party  on  Navy  Island,  then  in  arms  against  the  government 
of  Upper  Canada.  While  the  Caroline  thus  lay  within  the  jurisdiction  of  the  State  of 
New  York,  a  party  of  her  Britannic  Majesty's  subjects  left  the  shores  of  the  province  of 
Upper  Canada,  and  came  within  our  lines,  seized  and  destroyed  her,  and  killed  one 
Amos  Durfee, — who  was  found  dead  upon  the  wharf, — and  as  it  has  been  supposed,  sev- 
eral  others  of  the  citizens  who  were  on  board  of  the  vessel.  The  perpetrators  of  this 
act  were  deemed  to  have  been  guilty  of  the  crime  of  murder,  and  to  be  amenab'.e  to 
our  laws. 

On  the  12th  day  of  Nbvember  last,  Alexander  McLeod,  the  prisoner,  a  subject  of 
the  crown  of  Great  Britain,  and  a  resident  of  Upper  Canada,  came  to  Lewiston  in  the 
county  of  Niagara,  and  was  there  arrested  on  the  charge  of  having  been  concerned  in 
the  destruction  of  the  steomer  Caroline,  and  in  the  murder  of  our  citizens  ;  and  on  ex- 
amination  was  committed  to  the  common  jail  of  said  county,  to  answer  to  such  charge. 
On  the  6th  day  of  February  last,  at  a  Court  of  General  Sessions  of  the  Peace,  a  Grand 
Jury  of  said  county  found  a  true  bill  of  indictment  against  him  for  the  murder  of  Durfee. 
This  indictment,  which  is  now  to  be  traversed,  the  prisoner,  McLeod,  removed  from 
the  Niagara  Oyer  and  Terminer,  to  which  it  had  been  sent  from  the  General  Sessions, 
into  the  Supreme  Court  of  Judicature  of  the  people  of  the  State,  from  which  it  was  sent 
down  to  this  Circuit  to  be  traversed.  It  is  tried  as  a  civil  suit,  by  the  Circuit  Judge ; 
the  county  Judges,  who  are  Judges  of  the  Oyer  and  Terminer,  having  no  voice  on 
the  trial.  Reporter. 


tier  peisons, 


<l 


1   lilt-! 


s 


The  People  of  the  State  of  New  York, 

vs. 

Alexander  McLeod. 


1    For 


tho  murder  of 
rno8  Durfee. 


OPENING  SPEECH  OF  THE  ATTORN EY-GENERAL. 


Gentlemen  of  the  Jury — 

I  stand  bcforn  you  in  obedience  to  the  law,  and  in  the  name  of  the  people 
of  tho  State  of  New  York,  to  make  out  before  you  tho  charge  of  murder 
against  Alexander  McLcod,  the  prisoner  at  the  bar.     Tho  grand  Inquest, 
njion  the  solemnity  of  their  oaths,  have  denounced  against  the  prisoner  at  the 
bar,  the  blackest  in  the  culalogue  of  crimos.     Anil  it  now  devulvT's  upon  mt- 
to  plac(!  before  you  the  evidence  of  his  guilt.     Gentlemen,  it  caiuiot  be  dis- 
guised  that  this  trial  has  produced  an  extraordinary  excitement  in  the  public 
mind.     Wc  have  witnessed  it  in  the  crowding  masses  of  anxious  citizens, 
who  have  collected  here  to  witness  the  transactions  of  this  day.     We 
have  witnessed  it  in  these  paroxysms  of  public  agitation  ;  and  it  is  for  that 
reason  that  I  feel  called  upon  to  put  you  on  yoiu*  guard — to  warn  you  of 
your  danger — for  these  arc  stumbling-blocks  in  the  way  of  your  oaths, 
upon  which  hundreds  have  fallen.    Whatever  may  have  been  the  extraneous 
causes  which  have  produced  this  exhibition  of  unusual  |)opular  excitement, 
it  is  one  with  which  neither  you  nor  I  have  properly  any  thing  to  do — 
unless  to  shut  our  eyes  and  our  ears — to  close  up  every  avenue  to  our 
minds  against  them.     If  possible,  wc  should  forget  that  we  are  not  here, 
alone,  with  the  prisoner  and  his  witnesses.     We  should  forget  that  there  is 
any  car  to  hear,  or  eye  to  see,  save  that  alone  of  the  all-seeing  God  of 
Justice.     My  duty,  gentlemen  of  the  jury,  like  yours,  is  as  plain  and  as 
«}asy  to  be  discerned,  as  it-i,"  difficult  to  be  performed.     To  array  and  present 
to  you — to  examine  and  enforce,  and  urge  upon  you  the  testimony  which 
bears  against  the  life  of  a  human  being,  is  always  a  painful  duty.     But, 
gentlemen,  it  is  a  duty  as  peremptory  and  paramount  as  it  is  painful. 
Thonk  God,  it  is  no  part  of  my  duty  to  attempt  to  blind,  deceive,  or  mislead 
you.     I  am  not  required  to  insist  upon  any  principle  which  I  do  not  believe 
to  bo  in  accordance  with  law  and  evidence — which  I  do  not  believe  to  be 
true.     The  task  to  which  my  oath  binds  mo,  is  nothing  more  nor  less  than 
with  an  unshrinking  mind  to  elicit  the  truth  and  place  it  clearly  belbre  you. 
A  task,  in  this  case,  embarrassed  with  all  that  we  see  around  us — with 
prejudices  in  many  quarters,  with  many  unfounded  and  false  rumors,  with 
the  interests  and  passions  of  men,  which  it  has  excited :  a  task  which 
overwlielms  me  with  the  sense  of  the  greatness  of  my  responsibility,  and 
drives  me,  with  unfeigned  humility,  to  throw  myself  upon  your  indulgence, 
and  pray  you  not  to  let  the  cause  of  Justice  suffer  on  account  of  any  defi- 
ciency on  the  part  of  her  humble  advocate.     If  you  shall  see  that  through 
any  bias,  fear,  or  innate  weakness,  I  do  not  press  it  as  may  be  necessary 


4 


■Fl' 


•I'l 


(iOULD  S  REPORTER. 


i 


m 


ii'i;!. 


'I' 


;  1 1 

ii' 


I  I 


for  tlif  flrvf  lopinrnt  t)f  tnitli,  I  prny  you  tn  n-douldi  your  own  vij^ilannr, 
tliJtl  tlic  liiith  may  iKit  csciiiic  voii,  and  timt  you  may  not  l)i'  ovtrwhclnxid 
with  (irror.  It',  on  tlic  ntlicr  hand,  ycni  sliull  pn-crivc  an  rllort  to  su.stuin 
my  cause  against  proof,  or  in  conscfpicncc  of  the  array  of  chKHicnro  and 
talent  enlisted  |l»r  the  prisoner,  I  HhouM  .vem  to  he  captious  or  over  zeulons, 
placo  it  against  me.  ihit  let  it  not  turn  yoin*  hearts  against  tlit;  trutli  uf 
the  case  which  I  present  to  you.  (Jcntlomen  of  the  jury,  the  indictment 
found  Ijy  the  (Irand  .lury,  and  which  la  now  |)reseiited  for  your  considera. 
tiou  and  investigation,  charges  iho  prisoner  at  the  har,  Alexander  .Mclicnd, 
with  having  murdered,  on  tlu'  'JJHli  day  of  Deceniher,  1H,M7,  Amos  Durfee. 
This  charge  in  presented  in  various  forms  or  counts — they  are  seventeen 
in  numher.  They  arc  presented  in  these  various  forms,  in  order  to  meet 
the  t(!stimony  as  it  .shall  bo  presented.  Tlu;  snbstaiKM-  of  the  indictmcmt 
is,  that  Durfee  was  killed  and  murd(!red  by  the  hand  of  the  prisoner  at  the 
Ijtir,  or  by  some  other  person  witli  whom  the  prisoner  was  connected — 
aiding  or  assisting.  To  sustain  this  indictment,  it  will  he  proved  before 
you,  that  upon  or  about  the  iiOth  day  of  Decemlxr,  IHIJT,  a  steamboat 
called  the  Caroline,  a  boat  of  somo  30  or  40  tons  burden,  left  the  harbor 
of  Buffalo  for  Schlosser,  about  eighteen  miles  below  Buffalo  and  two  miles 
above  Niagara  Falls.  This  boat  was  manned  by  citizens,  enrolled  at  the 
Custom  House  in  Buffalo,  according  to  the  laws  of  the  United  States.  She 
had  a  license  frotn  the  Collector  of  the  Port  of  Buffalo  to  ply  between 
Buffalo  and  Schlosser.  At  that  time,  gentlemen  of  the  jury,  a  bund  of 
some  two  or  three  hundred  Canadian  insurgents  had  taken  possession  of 
Navy  Island.  They  possessed  it  and  claimed  to  hold  it,  under  the  name  of 
the  provisional  government  of  Upper  Canada.  There  had  been  in  Canada 
great  excitement,  and  this  excitement  extended  all  along  our  borders. 
Efforts  were  made  by  the  Canadian  insurgents  to  enlist  our  citizens  in  their 
cause.  The  fugitives  from  the  terrible  massacres  of  St.  Charles  and  St. 
FiUstachc,  whose  houses  were  burned  and  property  destroyed — and  whose 
wives  and  children  had  been  forced  into  the  driving  snows  of  a  Canadian 
winter,  found  no  difficulty,  upon  telling  the  talc  of  their  dreadful  sufferings, 
in  eliciting  the  sympathies  of  our  fellow  citizens.  And  it  was  but  an  easy 
and  natural  step,  from  sympathizing  with  the  sufferings  of  the  refugees, 
to  sympathize  also  in  their  cause.  And,  thus  stimulated  and  excited,  some 
of  the  more  reckless  young  men  joined  the  insurgents  upon  Navy  Island. 
For  this  act  Great  Britain  has  bitterly  complained  ;  and  in  our  own  country 
many  of  our  most  judicious  citizens  have  looked  upon  it  as  a  grievous 
fault.  Gentlemen,  it  is  no  part  of  my  case,  nor  is  it  my  design,  to  vindi- 
cate the  conduct  of  the  Patriots  or  insurgents ;  but  it  is  not  irrelevant  to 
my  case  to  state  thus  far  ;  that  those  of  our  fellow  citizens  who,  without 
forming  any  military  enterprise,  or  organizing  any  body  upon  our  own 
soil— single-handed  and  alone,  left  our  territory  and  united  themselves  with 
a  foreign  power,  have  violated  no  law  of  our  State,  no  law  of  the  United 
States,  no  law  of  nations.  They  have  done  no  more  than  has  been  done 
again  and  again  by  the  people  of  every  nation.  Your  own  recollections  of 
history  will  furnish  your  minds  with  hundreds  of  examples.  The  Swiss 
nation  have  for  hundreds  of  years  fed  all  the  armies  of  Europe ;  and  who 
ever  thought  of  holding  them  responsible  for  it  ?  They  did  no  more  than 
Admiral  Lord  Cochrane  did  in  taking  part  with  South  America.  They 
did  no  more  than  Lord  Byron  did,  who  gave  his  life  to  aid  the  Greeks  in 
breaking  the  chains  of  Turkish  bondage.    They  did  no  more  than  La 


8 


f 


ImH 


iilii 


m 


tr 


M'. 


1 

I 


MCLEOD  S  TRIAL 


98 


wii  vi;^ilnii('r, 
ovt.rwIielmtHl 
i)rt  to  NUHtuiri 
ItMiuctwv!  and 
tiv<T  /caloii.s, 
I  tlu!  truth  of 
<i  iiiflictiiient 
ir  coiisidera- 
d('rMcfi('nd, 
mos  Durl't'c. 
■0  sfvoiitccn 
nicr  U)  incut 
R  iiidictiiK'nt 
i.soiior  at  the 
connected — 
ovod  before 
n  steamboat 
t  the  harbor 
d  two  miles 
•oiled  at  the 
States.    She 
>ly  between 
,  a  band  of 
)ssession  of 
he  name  of 
1  in  Canada 
[ir  borders. 

ns  in  their 
les  and  St. 
■and  whos(! 

Canadian 

sufferings, 

ut  an  easy 

refugees, 

ited,  some 
vy  Island. 

n  country 
grievous 
to  vindi- 

levant  to 

),  without 

our  own 

Ives  with 

le  United 

een  done 

ctions  of 

le  Swiss 

and  who 

ore  than 
They 

reeks  in 

han  La 


Fayette — the  good,  the  glorious  Im  Fnyrtte — who  in  \m  love  for  luimnn 
libtTty  iTdssod  \\v  Atlantic,  and  ^'  ive  his  jiti-  and  |)rinc<'ly  lurinne  in  tlio 
Htruj^gle  of  till'  I'atriofs  in  our  ow/i  Ht>voliiiion.  (ientlemen,  I  nin  not  de. 
vialing  I'roin  i'"''  case  fiiflher  fhan  \h  nrecssary  to  remove  the  just  odium 
under  which  the  «  'ise  liihofp,  l>y  having  heaped  upon  it  that  wlii<'h  has 
been  uIljll^^tly  thrown  lipon  those  who  jf-ined  the  insurgents.  I  wi.>*h  to  set 
before  you  distinctly,  tfm'  in  this  case,  it  will  appear  in  |)roof,  that  the 
Caroline  was  not  connecteil  willi  the  insiu-gents  oa  N/ivy  Island,  that  she 
was  not  in  their  eniploynient,  or  in  any  way  comiected  with  their  opera- 
tions. It  will  appear  tVntn  the  testimony,  lluit  the  objects  of  the.  owners  of 
the  Caroline  was  of  !i  totally  dillertint  character.  Thisi  collection  upon 
Navy  island  had  (;xeited  great  curiosity  throughout  the  country.  At  this 
period  of  the  year,  the  lakes  and  the  canals  were  closed  with  Ice.  Those 
whoso  usual  occu()ation  was  to  navigate  those  waters,  were  relieved  from 
their  labor — and  this  was  a  season  of  leisure.  Winter  had  set  in — the 
farmer  and  his  sons  and  laborers  were  relieved  from  the  cultivation  of  the 
soil,  and  had  leisure  to  enjoy  the  fruits  of  their  labor.  It  was  about  the  time 
of  the  Christmas  holidays.  Large  numbers  of  people  were  assembling  at 
Schlosser,  the  nearest  landing  place  and  port  to  Navy  Island.  Is  it  re- 
rnarkable  that  on(!  of  our  countrymen,  especially  one  of  our  eastern  breth- 
ren, should  see  an  opportunity  of  gain  under  these  circumstances  ?  This 
was  the  fact,  and  Mr.  Wells  saw  in  the  circumstance  of  the  excitement  and 
curiosity  which  were  drawing  thousands  to  Schlosser — of  whom  not  one  in 
a  thousand  went  to  the  island — he  saw  an  opportunity  of  making  gains 
by  his  little  boat,  which  was  hardly  larger  than  a  ferry  boat,  and  which  was 
lying  idle  at  Buffalo.  With  this,  and  no  other  motive  than  that  of  profit, 
he  started  from  Buffalo,  on  the  28th  of  December,  1837,  to  Schlosser.  He 
stopped  at  all  the  intermediate  points,  or  landing  places  where  boats  had 
theretofore  stopped.  After  reaching  Schlosser,  about  2  o'clock  in  the  day, 
he  went  from  there  to  Navy  Island ;  he  made  two  trips  in  the  course  of 
the  afternoon,  carrying  passengers  and  such  articles  as  were  brought  to 
him  to  be  conveyed,  and  such  as  were  conveyed  by  other  ferry  boats. 
Among  these  articles  it  will  appear  there  was  a  cannon.  Much  stress  has 
been  laid  upon  this  circumstance ;  and  I  therefore  pause  one  moment  to 
comment  upon  it,  so  far  that  you  may  perceive  what  force  an  act  of  this 
kind  should  have.  It  was  one  of  those  articles  which,  when  nations  are  at 
war,  neutrals  are  prohibited  to  convey,  under  pain  of  forfeiture  if  taken. 
If  a  neutral  undertake  to  carry  arms  and  munitions  of  war,  the  vessel  and 
articles  so  conveyed  ajjc  liable  to  forfeiture.  But  if  a  vessel  carry  such 
articles  to  the  destined  point  and  land  them,  she  cannot  afterwards  be 
held  liable.  The  moment  the  articles  are  landed  she  is  no  longer  liable  to 
be  seized  or  molested.  This  law  applies  upon  the  high  seas,  the  common 
high-way  of  all  nations.  In  this  portion  of  the  territory  it  would  apply 
only  in  cases  of  seizure  within  the  waters  of  Great  Britain,  and  it  would 
not  extend  to  them  the  right  of  coming  within  our  own  waters. 

It  will  be  observed  that  at  the  same  time  that  this  vessel  wa.s  passing 
between  Navy  Island  and  the  American  shore,  a  ferry  boat  was  passing 
from  Black  Rock  to  Waterloo,  on  the  Canada  shore  daily  and  hourly, 
carrying  to  Canada  arms  and  munitions  of  war,  and  the  Canadian  army 
"were  fed  at  the  same  time  from  the  American  shore.  And  I  go  further 
and  say — but  I  do  not  in  this  case  say  it  with  pride — it  will  be  found  that 
American  citizens  were  iu  the  ranks  of  the  army  embodied  upon  the 


24 


GOULD  S   REPORTER. 


■     if 


Canadian  side.  But  when  it  is  brought  up  against  these  people  as  a 
charge  that  their  interfl-rouoe  was  unjust  and  iniquitous,  the  charge  seems 
to  be  unfounded  in  fact.  It  seems  as  a  course  consistent,  when  citizens 
of  a  neutral  power  enlist  in  the  ranks  of  their  enemies,  that  our  citizens 
should  be  equtlly  ready  to  enlist  in  their  ranks.  Our  relations  are  such 
that  we  can  interfere  neither  on  one  side  nor  the  other.  After  having 
performed  these  trips,  this  steamboat  was  moored  at  Fort  Schlosser.  Be 
not  deceived.  There  is  no  fort  there.  The  old  fort  is  covered  with 
luxuriant  cornfields.  There  is  no  building  except  a  warehouse  at  the 
wharf,  and  a  tavern  about  fifty  rods  from  it,  and  scarcely  a  house  excopt 
at  the  Falls,  for  a  distance  of  two  miles.  At  this  tavern  the  hundreds 
who  were  flocking  there,  and  were  crowding  and  thronging  this  place  in 
the  evening  could  not  obtain  lodgings,  and  came  to  the  boat.  The  captain 
gave  them  liberty  to  lodge  upon  the  boat,  so  far  as  her  accommodations 
extended.  It  will  appear  that  some  eighteen  or  twenty  went  to  the  boat 
and.  took  up  lodgings.  It  will  also  appear  that  this  boat  was  unarmed, 
tliat  she  had  no  equipments  of  her  own,  nor  had  she  on  board  any  arms, 
nor  were  the  men  on  board  armed.  Nor  were  those  who  came  on  board 
to  lodge  that  night  armed.  At  10  o'clock,  as  will  appear,  tlie  watch  was 
set,  and  the  inmates  retired  to  their  repose,  unsuspicious  of  danger,  as 
they  were  unccnscious  of  wrong.  But  about  12  o'clock — the  testimony 
may  vary  f.'om  half-past  eleven  until  one  o'clock — the  Captain  was  aroused 
by  the  watch,  who  informed  him  that  boats  full  of  men  were  approaching, 
and  that  the  men  were  coming  on  board.  Presently  the  noise  of  tramping 
and  shouting  was  heard,  and  the  men  aroused  in  this  manner  from  their 
slumbers,  hastily  arose,  and  seizing  whatever  of  their  clothing  was  at  hand, 
they  rushed  for  the  companion-way  or  gangways,  to  every  avenue " 
through  which  they  might  escape.  Some  were  fortunate  enough  to  escape 
with  their  lives,  others  were  met  by  armed  men,  and  thrust  at  with  swords 
and  pikes,  and  severely  wounded  ;  yet  they  were  enabled  to  escape  with 
tlieir  lives.  It  is  but  too  probable  that  there  were  still  others,  who, 
alarmed  at  the  sudden  onset,  by  the  cries  and  shouts,  the  clashing  of  arms 
and  firing  of  pistols,  and  cries  of  no  quarter ;  and  apprehensive  of  being 
put  to  death,  concealed  themselves  beneath  and  around  the  boiler  and 
other  places,  and  came  forth  after  those  ruffians  had  left  the  boat,  only  to 
meet  the  rushing  flames,  and  to  hear  th"  roar  of  Niagara.  But,  gentle- 
men of  the  jury,  those  who  had  escaped  from  the  boat,  found  that  they 
had  not  thereby  escaped  from  danger.  Some  who  had  escaped  from  the 
attack  upon  the  deck  of  the  vessel,  were  pursued  iuto  the  warehouse.  And 
the  warehouse  was  searched  with  lights  to  ascertain — in  the  language  of 

themselves — if  some  of  the  d d  Yankees  were  not  concealed  there. 

Amos  Durfce,  whose  sad  fate  is  the  immediate  cause  of  your  being  em- 
pannelled  here,  was  found  upon  the  wharf,  some  four  rods  distant  from 
the  boat,  a  ball  having  been  shot  through  his  head,  entering  the  back  part, 
and  coming  out  in  front.  It  had  been  so  near  that  the  cap  upon  his  head 
was  singed  with  fire  from  the  gun.  He  had  doubtless  been  shot  upon  the 
spot,  and  died  instantly  with  the  wound.  It  will  appear  also  that  the  as. 
sailants  who  had  committed  this  bloody  rieed  were  some  of  a  band  of 
armed  men,  between  forty  and  sixty,  who  had  come  from  the  Canadian 
shore.  It  will  appear  before  you  that  it  was  a  secret  and  voluntary 
expedition,  armed  for  the  purpose  of  the  destruction  of  the  Caroline. 
At  that  time,  gentlemen  of  the  jury,  there  was  on  the  Canada  shore  an 


pe 
tha 


Mcleod's  trial. 


26 


ae  people  aa  a 
»e  charge  seems 
,  when  citizens 
hat  our  citizens 
aliens  are  such 
After  having 
Schlosser.     Be 
3  covered  with 
rehouse  at  the 
a  house  except 
1  the  hundreds 
g  this  place  in 
.    The  captain 
;commodations 
ent  to  the  boat 
was  unarmed, 
lard  any  arms, 
;ame  on  board 
the  watch  was 
of  danger,  as 
•tlie  testimony 
in  was  aroused 
5  approaching, 
50  of  tramping 
»er  from  their 
?  was  at  hand, 
3very  avenue' 
ugh  to  escape 
It  with  swords 
3  escape  with 
others,   who, 
shing  of  arms 
isive  of  being 
ie  boiler  and 
boat,  only  to 
But,  gentle. 
md  that  they 
ped  from  the 
shouse.   And 
language  of 
;ealed  there. 
ir  being  em- 
distant  from 
e  back  part, 
ion  his  head 
liot  upon  the 
that  the  as- 
"  a  band  of 
le  Canadian 
i  voluntary 
e  Caroline, 
da  shore  an 


:4 


W. 


army  of  some  twenty-five  hundred  men,  who  had  been  collected  there  on 
the  occasion  of  the  seizure  of  Navy  Island  by  the  insurgents.  They  were 
there  avowedly  for  the  purpose  of  repelling  any  attempt  at  invasion  which 
might  be  made  by  the  insurgents.  From  these  circumstances,  it  has  been 
alleged  that  the  transaction  was  one  more  of  a  military  character  than 
civil ;  that  it  was  a  transaction  of  armed  men,  acting  in  an  organized 
manner,  and  to  be  governed  by  laws  and  rules  which  do  not  prevail  in 
courts  of  justice.  Gentlemen,  it  is  but  right  that  your  minds  should  be 
perfectly  disembarrassed ;  I  therefore  present  the  case  to  you  l)roadly, 
that  when  the  testimony  is  brought  before  you,  you  may  see  its  bearing 
and  application.  I  will  submit  the  decision  of  the  Supreme  Court,  given 
upon  the  facts  in  evidence,  after  able  and  eloquent  arguments  on  the  part 
of  the  counsel  for  the  prisoner — given  after  great  deliberation — an  oj)iiiion 
which  is  unanswered  and  unanswerable.  In  that  opinion,  all  those  ques- 
tions which  might  embarrass  you,  under  the  ingenuity  of  counsel,  have 
been  entirely  disposed  of,  and  the  real  points  which  you  are  to  pass  upon 
are  distinctly  pointed  out  to  you. 

The  learned  gentleman  here  read  the  opinion  of  Judge  Cowen,  recently 
made  on  the  case  brought  before  the  Supreme  Court  of  the  State  by  the 
prisoner  some  few  months  ago,  which  is  as  follows : — 

OPINION    OF    JUDGE    COWEN. 

The  prisoner's  petition,  on  which  I  allowed  this  writ,  contained  an  intimation  that  his 
commitment  to  the  jail  of  the  county  of  Niagara  had  not  been  ree^ilar  ;  but  that  ground 
is  now  abandoned.  The  sherilT  returns  an  indictment  for  murder,  found  by  a  grand  jury 
of  that  county  against  the  prisoner,  on  wiiich  he  appears  to  have  been  arraigned  at  the 
Court  of  Oyer  and  Terminer  holden  in  the  same  county.  It  further  appears  that  he 
pleaded  not  guilty,  and  was  duly  committed  for  trial.  The  indictment  charges,  in  the 
usual  form,  the  murder  of  Amos  Durfee  by  the  prisoner,  on  a  certain  day,  and  at  a  cer- 
tain town  within  the  county. 

These  facts,  although  officially  returned  by  the  sheriff,  were,  by  a  provision  in  the 
habeas  corpus  act,  2  R.  S.  471,  2d  ed.  §50,  open  to  a  denial  by  affidavit,  ov  the  allega- 
tion  of  any  fact  to  show  that  the  imprisonment  or  ('ctention  is  unlawful.  In  such  case 
the  same  section  requires  this  court  to  proceed  in  a  summary  way,  to  hear  allegations 
and  proofs  in  support  of  the  imprisonment  or  detention,  and  dispose  of  the  party  as  the 
justice  of  the  case  may  require.  Under  color  of  complying  with  this  provision,  which  ii 
of  recent  introduction,  the  prisoner,  not  denying  thejurisdiction  of  the  court  over  the 
crime,  as  charged  in  the  indictment,  or  the  regularity  of  the  commitment,  has  interposed 
an  affidavit,  stating  certain  extrinsic  facts.  One  is,  that  he  was  absent,  and  did  not  at 
all  participate  in  the  alleged  offence ;  the  other,  that  if  present,  and  acting,  it  was  in 
the  necessary  defence  or  protection  of  his  country  against  a  treasonable  insurrection  of 
which  Durfee  was  acting  in  aid  at  the  time. 

Taking  these  facts  to  be  mere  matters  of  evidence  upon  the  issue  of  not  guilty,  and 
of  themselves,  they  are  clearly  nothing  more,  I  am  of  opinion  that  they  cannot  be  made 
available  on  habeas  corpus,  even  as  an  argument  for  letting  the  prisoner  to  bail,  much 
less  for  ordering  his  unqualified  discharge.  That  this  would  be  so  on  all  the  authorities 
previous  to  the  Revised  Statutes,  his  counsel  do  not  deny.  Tiie  rule  of  the  case  is  thus 
laid  down  in  the  British  books  : — "  A  man  charged  with  murder  by  a  verdict  of  a  coro- 
ner's  inquest,  may  be  admitted  to  bo'"  ;  though  not  after  the  finding  of  an  indictment 
by  the  grand  jury."  1  Chit.  Cr.  L.  129,  Am.  ed.  of  1836.  Petersd.  on  Bail,  5r>l,  S.  P. 
It  has  never,  that  wc  are  aware,  been  departed  from  in  practice  under  the  British  habeas 
corpus  act.  Lord  Ch.  .Justice  Raymond  said,  in  Rex  v.  Dalton,  2  Str.  911,  that  he 
would  bail  though  a  coroner's  inquest  had  foimd  the  crime  to  be  murder ;  and  the  dis- 
tinction was  between  the  coroner's  inquest,  where  the  court  can  look  into  the  deposi- 
tions, and  an  indictment  where  the  evidence  is  secret.  Lord  Mohnn's  case,  1  Salk. 
104,  S.  P.  This  reason  is  adopted  by  Chitty,  at  the  page  of  his  Cr.  Law  before  cited  ; 
and  by  Petersd.  on  Bail,  London  ed.  of  1835,  p.  521.    It  was  also  recognised  by  Suther- 


1 


'rl 


n 


*i 


p 


1 ;;  I' 


26 


GOULD'S   REPORTER. 


land,  J.  of  this  court,  in  1825.  Taylor's  case,  5  Cowen's  Rep.  i)6.    He  says,  "  the  in- 
dictment must  be  taken  as  conchisive  upon  the  degree  of  tlic  crime,"  id. 

The  depositions  heretofore  taken  in  the  cause  being  thus  cut  off,  there  are  no  incans 
of  inquiry  left  to  us  on  this  motion,  by  which  we  can  say  whether  a  murder  was  in  fact 
committed,  or  whether  the  charge  would  probably  bo  mitigated  on  the  trial  to  a  very 
doubtful  case  of  manslaughter,  or  to  a  homicide  in  defence,  or  whether  all  participation 
might  be  disproved  by  showing  a  clear  alibi.    Nothing  is  bettor  settled,  on  English 
authority,  than  that  on  habeas  corpus,  the  examination  as  to  guilt  or  innocence  cannot, 
under  any  circumstances,  extend  beyond  the  depositions  or  |)roofs  upon  which  the  pri. 
soner  was  committed.    This  would  be  so,  even  on  habeas  corpus  before  an  indictment 
found,  however  loosely  the  charge  might  be  expressed  in  the  warrant  of  commitment. 
Chitty,  at  the  page  before  cited,  says,  "  It  is  in  fact  to  the  depositions  alone  that  the 
court  will  look  for  their  direction  :  where  a  felony  is  positively  charged,  they  will  refuse 
to  bail,  though  an  alibi  be  supported  by  the  strongest  evidence."  He  cites  Rex  v.  Green- 
wood, 2  Str.  1138,  a  cbbc  of  robbery,  and  eight  credible  witnesses  making  aflidavit  that 
the  prisoner  was  at  another  place  at  the  time  when  the  robbery  was  committed  ;   yet, 
adds  the  report,  the  court  refused  to  admit  him  to  bail,  but  ordered  him  to  remain  till 
the  assizes.   Here  the  crime  is  clearly  proved  by  the  depositions  which  have  been  read 
on  the  side  of  the  people,  while,  instead  of  eight  witnesses  to  an  alibi,  we  have  the  soli- 
tary affidavit  of  the  prisoner.     In  Rex  v.  Acton,  3  Str.  S.'il,  the  prisoner  had  been  tried 
for  the  murder  and  acquitted  :  afterwards  a  single  justice  of  the  peace  issued  a  warrant 
charging  him  with  the  same  murder,  upon  which  he  was  again  committed.   On  an  offer 
to  show  the  former  acquittal  in  the  clearest  manner,  the  court  refused  to  hear  the  proof. 
On  the  authority  of  'his  case,  Mr.  Chitty,  at  the  page  just  cited,  lays  down  the  rule  that 
the  court  will  not  locik  into  extrinsic  evidence  at  all.  He  states  a  case  wherein  the  same 
question  came  up  in  respect  to  an  inferior  crime — receiving  stolen  goods  with  a  guilty 
knowledge.   The  prisoner's  affidavit  denied  his  knowledge ;   yet  the  court  refused  to 
bail,  saying  the  fact  of  knowledge  was  triable  by  a  jury  only.    They  added,  it  would  be 
of  dangerous  consequence  to  allow  such  proceedings,  as  it  might  induce  prisoners  gene- 
rally to  lay  their  case  before  the  court.   Page  before  cited,  Petersd.  on  Bail,  page  before 
cited,  refers  to  Chitty,  who  cites  cases  K.  B.  96.    This  book,  eo  nomine,  does  not  ap- 
pear now  to  be  extant ;  and  12  mod.  the  only  reference  I  am  aware  of,  which,  among 
the  English  quotations,  is  synonymous  with  Chitty's,  does  not  appear  to  contain  the  case 
stated  by  him.   But  it  accords  with  many  others  in  circumstance  ;  and  the  reason  given 
is  almost  too  plain  to  demand  any  direct  authority.    To  hear  defensive  matter  throtigh 
ex  parte  affidavits  as  a  ground  for  bailing  the  prisoner,  would  be  to  trench  on  the  office 
of  the  jury ;  for  in  the  case  of  high  crimes,  bail  would  be  equivalent  to  an  acquittal. 
Accordingly,  the  rule  as  laid  down  in  Horner's  case,  1  Leach  270,  4th  edition,  London^ 
1815,  is  in  effect  the  same  with  that  stated  by  Chitty.   The  prisoner  had  been  committed 
under  a  charge  of  defrauding  and  robbing  a  man  of  his  money  by  false  pretences.   It  was 
insisted  that  the  facts  stated  in  the  depositions  for  the  king  made  out  a  mere  misdemea- 
nor ;  and  that  the  prisoner  was  therefore  entitled  to  bail.    But  the  transaction  by  which 
the  money  was  obtained,  admitted  of  one  construction  which  might  make  it  a  felonious 
taking.    The  court  said,  "  In  cases  of  this  kind  the  course  has  always  been  to  leave  it  to 
the  jury  to  determine  quo  animo  the  money  was  obtained.     In  such  a  case  the  court 
never  form  any  judgment  whether  the  facts  amount  to  a  felony  or  not ;  but  merely  whe- 
ther enough  is  charged  to  justify  the  detainer  of  the  prisoner,  and  put  him  upon  his  trial. 
The  cases  I  have  noticed  were,  in  several  respects,  stronger  for  the  prisoners  than  the 
case  before  us.    They  were  mostly  founded  on  charges  of  a  character  much  less  serious 
than  murder.  They  were  all  before  indictment  found  :  some  of  them  presented  a  state  of 
things  on  which  it  was  plainly  impossible  to  convict ;  and  last,  though  not  least,  they 
were  mere  applications  for  bail ;  a  thing  which  McLeod  does  not  ask  for.  He  demandis 
an  absolute  discharge,  on  grounds  upon  which,  according  to  the  laws  of  England,  he 
would  not  even  be  entitled  to  bail.    The  law  of  England  formed  in  this  respect  the  law 
of  New  York,  until  our  new  habeas  corpus  act  took  effect. 

It  becomes  necessary  next,  to  inquire  whether  the  new  statute  has  worked  any  en- 
largemeut  of  our  powers  beyond  what  we  have  seen  they  were  up  to  the  time  when  it 
passed.  The  2  R.  S.  469.  2ded.  ^40,  41,  requires  us  to  examine  the  facts  contained  in 
the  return,  and  into  the  cause  of  the  confinement  of  the  prisoner ;  and  if  no  legal  cruse 
be  shown  for  it,  or  for  its  continuation,  we  are  to  discharge  him.  That  here  is  lv<gal 
cause,  viz.  an  indictment  for  murder,  and  an  order  of  commitment,  we  have  seen,  is  not 
denied.  By  the  45th  section,  p.  470,  if  it  appear  that  the  party  has  been  legally  com- 
mitted for  any  criminal  offence,  we  are  required  to  let  him  to  bail,  if  the  case  be  baila- 


..III- 


4 


MCLEOD  S   TRIAL. 


27 


[c  says,  "  the  in- 
cl. 

ore  am  no  means 
lurder  was  in  iact 
he  trial  to  a  very 
r  all  participation 
(tied,  on  Englisli 
nnoccncu  cannot, 
3n  which  the  pri. 
)rc  an  indictment 
t  of  conunitnient. 
s  alone  that  the 
,  they  will  refuse 
cs  Rex  V.  Green, 
ling  afl'idavit  that 
committed  ;   yet, 
im  to  remain  till 
have  heen  read 
we  have  the  soli- 
[■r  had  been  tried 
issued  a  warrant 
ted.   On  an  offer 
o  hear  the  proof. 
)wn  the  rule  that 
vherein  the  same 
ds  with  a  guilty 
court  refused  to 
!ded,  it  would  be 
;  prisoners  gene- 
Bail,  page  before 
ae,  does  not  ap- 
r,  which,  among 
contain  the  ca«e 
the  reason  given 
matter  through 
ich  on  the  office 
to  an  acquittal, 
lition,  London, 
been  committed 

tences.  It  wae 
ncre  misdemea. 
iction  by  which 
(6  it  a  felonious 
Bn  to  leave  it  to 
case  the  court 
ut  merely  whe- 

upon  his  trial, 
isoners  than  the 
uch  less  serious 
ented  a  state  of 
not  least,  they 
He  demands 
sf  England,  he 
■espect  the  law 

orked  any  en. 
i  time  when  it 
ts  contained  in 
no  legal  cpuse 
here  is  lt>gal 
ve  seen,  is  not 
1  legally  corn- 
case  be  baila- 


r 


% 


^ 


't 


bic.  But  so  far  we  have  no  direction  as  to  what  case  shall  be  considered  bailable.  We 
arc  left  under  the  restraints  wliich  I  have  noticed  as  existing  before  the  statute.  Not  ont 
of  them  is  removed  by  it. 

Tiien  comes  section  50,  p.  471,  which  is  relied  on  by  the  prisoner's  counsel.  I  briefly 
noticed  this  in  |>roposing  the  ((ucstion  to  be  considered.  But  the  prisoner  is  entitled  to 
the  benefit  of  it  entire.  The  words  are,  that  "  the  party  brought  before  such  court  or 
officer,  on  the  return  of  any  writ  of  habeas  corpus,  may  deny  any  of  the  material  facts 
set  forth  in  the  return,  or  allege  any  fact  to  show  either  that  his  impnaomiient  or  dclcri. 
tion  is  uidaipful,  or  that  he  is  entitled  to  his  discharge,  which  allegations  or  denials^ 
shall  be  on  oath  ;  and  tliercupon  such  court  or  officer  .shall  proceed  in  a  summary  way 
to  hear  such  allcga;ions  and  proofs  as  maybe  produced  in  support  of  such  impri^joninent 
or  detention,  or  against  the  same,  and  to  dispose  of  such  party  as  the  justice  of  the  cast- 
may  require."  Under  this  statute,  the  prisoner's  counsel  claim  the  right  of  going  be. 
hind  the  indictment,  and  proving  that  he  is  not  guilty  by  utFidavit,  as  he  may  i)y  oral 
testimony  before  the  jury.  We  have  already  shown  the  absurdity  of  such  a  projiusiiiiin 
in  practice,  and  its  consequent  repudiation  by  the  English  Criminal  Courts.  And  \v. 
were  not  disposed  to  admit  its  adoption  by  our  legislature,  without  clear  words  or  nects-- 
sary  construction. 

We  think  its  object  entirely  plain  without  a  resort  to  the  rules  of  construction.  It.-; 
words  are  satisfied  by  being  limited  to  the  lawfulness  of  the  authority  under  which  the 
prisoner  is  detained,  without  being  extended  to  the  force  of  the  evidence  upon  which 
the  authority  was  exerted,  or  which  it  may  be  in  the  prisoner's  power  to  adduce  at  tlu 
trial.  This,  if  necessary,  is  rendered  still  more  plain  by  considering  the  evil  which  the 
statute  was  intended  to  remedy.  At  common  law,  it  was  doubtful  whether  the  prisoner 
could  question  the  tnith  of  the  return  or  overcome  it  by  showing  extrinsic  matter,  upon 
the  point  of  the  authority  to  imprison.  The  statute  was  passed  to  obviate  the  oppres- 
sion which  might  sometimes  arise  from  the  necessity  of  holding  a  return  to  be  final  and 
conclusive,  which  is  false  in  fact,  or  if  true,  depending  for  its  validity  on  the  act  of  a 
magistrate  or  court  which  can  be  shown  by  proofs  aliunde  to  have  been  destitute  o* 
jurisdiction.  Watson's  case,  9  Adolph.  ai.d  Ellis,  731,  3  R.  S.  78.  5,  2d  ed.  App.  note. 
An  innocent  man  may  be,  and  sometimes  unfortunately  is  imprisoned.  Yet  his  impri- 
sonment is  no  less  lawful  than  if  he  were  guilty.  He  must  await  his  trial  before  a  jury. 
There  are  various  cases  in  which  the  enactment,  allowing  proof  extrinsic  to  the  return, 
may  have  effect  without  supposing  it  applicable  here.  It  must,  I  apprehend,  for  thir 
most  part  apply  to  the  cases  where  the  original  commitment  was  lawful ;  but  in  conse. 
quence  of  the  happening  of  some  subsequent  event,  the  party  has  become  entitled  to 
his  discharge,  as  if  he  bo  committed  till  he  pay  a  fine,  which  he  has  paid  accordingly, 
and  the  return  states  the  commitment  only ;  so  after  conviction  he  may  allege  a  pardon, 
or  that  the  judgment  under  which  he  was  imprisoned  has  been  reversed. — Nor  is  it  neces- 
sary to  inquire  how  far  we  might  be  entitled  to  go,  were  the  prisoner  in  custody  on  the 
mere  examination  and  warrant  of  a  committing  magistrate. 

But  it  is  said  we  have  the  power  to  direct  the  entry  of  a  nolle  prosequi,  and  it  is  our 
duty  to  look  into  the  merits  of  the  case,  with  a  view  to  decide  whether  it  be  a  proper 
one  for  the  exercise  of  that  power.  This  proposition  is  also  put  upon  a  new  section  of 
the  Revised  Statutes,  which  most  clearly  gives  no  color  for  the  suggestion.  At  common 
law  the  Attorney-General  alone  possessed  this  power ;  and  might,  under  such  precau- 
tions  as  he  felt  it  his  duty  to  adopt,  discontinue  a  criminal  ...osecution  in  that  form  at 
any  time  before  verdict.  The  power  and  practice  under  it  are  laid  down  in  1  Chit.  Cr. 
Law,  478,  ed.  before  cited. — It  probably  exists  unimpaired  in  the  Attorney-General  to 
this  day ;  and  it  has  been  by  several  statutes  delegated  to  District  Attorneys,  who  now 
represent  the  Attorney-General  in  every  thing  pertaining  to  indictments  and  other  cri. 
minal  proceedings  local  to  their  respective  counties.  The  Legislature  finding  the  power 
in  so  many  hands,  fcnd  fearing  its  abuse,  by  the  2  R.  S.  609,  2d  ed.  §  54,  provided  that 
it  should  not  thereafter  be  lawful  for  any  District  Attorney  to  enter  a  nolle  prosequi  upon 
any  indictment,  or  in  any  other  way  discontinue  or  abandon  the  same- without  leave  of 
the  court  having  jurisdiction  to  try  the  offence  charged.  This  provision  the  prisoner's 
counsel  contended,  so  enlarged  our  powers  that  we  might  arbitrarily  interfere  on  the 
prisoner's  affidavit  and  other  proofs  verifying  his  innocence,  or  even  on  grounds  of  na- 
tional  policy,  as  where  the  prosecution  would  be  hkely  to  affect  our  foreign  relations 
unfavorably ;  and  that  too  in  despite  of  the  Attorney-General  and  District  Attorney. 
Conceded  as  it  was,  that  before  the  Revised  Statutes,  we  had  no  power  to  give  such 
direction,  the  argument  seeks  to  draw  from  the  statute  giving  ua  a  veto  against  <he  nolle 
prosequi  a  positive  power  to  compel  its  entry.    Even  if  we  had  such  power,  the  KSgii- 


I 


I' 


tr ,  I 


't(' 


mi 


''( 


m 


26 


GOOLD  S   REPORTER. 


ment  would  be  quite  extraordinary.  It  demands  fhat  wo  should  finally  dispose  of  an 
indictment  for  murder,  on  the  sort  of  evidence  by  which  wo  are  pruided  upon  a  motion 
:o  set  aside  a  default  or  change  a  venue.  In  any  view,  this  question  belongs  primarily 
to  the  executive  department  of  the  government. 

I  shall  have  oeeusioii  to  inquire  hereafter  whether  these  views  should  not  be  regarded 
as  a  final  answer  to  this  application.  That  will  depend  on  the  question  whether  facts 
stated  on  the  part  of  the  prisoner,  supposing  them  to  be  admissible  at  all,  are  proper  for 
ihe  consideration  of  the  jury  only  ;  or  whether,  as  counsel  have  insisted  with  great  zeal, 
they  are  such  as  to  divest  our  criminal  courts  of  all  jurisdiction  either  over  the  subject 
matter  or  person  of  the  prisoner.  Wo  should,  as  we  thought  at  the  close  of  the  argu. 
ment,  have  felt  ourselves  entirely  satisfied  to  dispose  of  the  ease  on  the  firet  qucslion, 
without  looking  any  further  into  the  nature  of  the  transaction  out  of  which  this  indict- 
ment has  arisen.  But,  as  counsel  made  the  question  of  jurisdiction  their  main  topic, 
we  preferred  to  reserve  the  case,  and  have  looked  into  it  as  far  as  possible  during  a  very 
short  vacation,  consistently  with  other  pressing  judicial  avocations. 

Want  of  jurisdiction  has  not  been  put  on  the  ground  that  McLeod  was  a  loreigncr. 
An  alien,  in  whatever  manner  he  may  have  entered  our  territory,  is,  if  he  commit  a 
crime  while  here,  amenable  to  our  criminal  law.  Lord  Mansfield,  in  Campbell  vs.  Hal!, 
Cowp.  208.  Vattel,  B.  2,  eh.  8,  §  101-2.  Story's  Confl.  of  L.  518,  2d  ed.  Nay,  says 
Locho,  though  he  were  an  East  Indian,  and  never  heard  of  our  laws.  On  Civ.  Gov. 
B.  2,  ch.  2,  §  9. 

But  it  is  said  his  case  belongs  exclusively  to  the  forum  of  nations,  by  which  counsel 
mean  the  diplomatic  power  of  the  United  States  and  England ;  or  in  the  event  of  their 
disagreement,  the  battle-field.  1  have  already  admitted  that  counsel  may,  under  the 
50th  section  of  the  habeas  corpus  act,  allege  and  prove  a  want  of  jurisdiction.  To  show 
this  the  affidavit  of  McLeod  is  produced,  from  which  the  inference  is  sought  to  be  raised 
that  the  Niagara  frontier  was  in  a  state  of  war  against  the  contiguous  province  of  L'pper 
Canada ;  that  the  homicide  was  committed  by  McLeod,  if  at  all,  as  one  of  a  military 
expedition,  set  on  foot  by  the  Canadian  authorities  to  destroy  the  boat  Caroline ;  that 
he  was  a  British  subject.  That  the  expedition  crossed  our  boundary,  sought  the  Caro. 
line  at  her  moorings  in  Schlosser,  aiid  there  set  fire  to  and  burned  her,  and  killed  Durfee, 
one  of  our  citizens,  as  it  was  lawful  to  do  in  time  of  war. 

We  need  not  stay  to  examine  the  conclusion,  viz,  a  want  of  jurisdiction,  if  the  pre- , 
mises  be  untrue.  To  warrant  the  destruction  of  property,  or  the  taking  of  life,  on  the 
ground  of  public  war,  it  must  be  what  is  called  lawful  war,  by  the  law  of  nations,  a 
thing  which  can  never  exist  without  the  actual  concurrence  of  the  war-making  power. 
This,  on  the  part  of  the  United  States,  is  Congress ;  on  the  part  of  England,  the  Queen. 
A  state  of  peace  and  the  continuance  of  treaties  must  be  presumed  by  all  courts  of  jus- 
tice  till  the  contrary  be  shown ;  and  this  is  a  presumptio  jari's  et  de  jure,  until  the  na- 
tional  power  of  the  country  in  which  such  courts  sit,  officially  declares  the  contrary. 
A  learned  English  writer  on  the  law  of  nations  makes  this  remark.  (1  Ward's  Law 
oi  Nations,  294.)  "  Although  I  am  aware  that  there  is  a  great  authority  for  the  con- 
trary  opinion,  yet  it  is  upon  the  whole  setUed  that  no  private  hostihties,  however  gene- 
ral,  or  however  just,  will  constitute  what  is  called  a  legitimate  and  public  state  of  war. 
So  far  indeed  has  my  Lord  Coke  carried  this  point,  that  he  holds,  if  all  the  subjects  of  a 
king  of  England  were  to  make  war  on  another  country  in  league  with  it,  but  without 
the  assent  of  the  king,  there  would  still  be  no  breach  of  the  league  between  the  two 
countries."  1  Bl.  Com.  267,  S.  P.  Again,  in  Blackburne  v.  Thompson,  15  East,  81, 
90,  Lord  EUenborough,  Ch.  J.,  delivering  the  opinion  of  the  Court  of  King's  Bench, 
said,  "  I  agree  with  the  Master  of  the  Rolls  in  the  case  of  the  Pelican,  (1  P^dw.  Adm. 
Rep.  Append.  D.)  that  it  belongs  to  the  government  of  the  country  to  determine  in  what 
relation  of  peace  or  war  any  other  country  stands  towards  it ;  and  that  it  would  be  un- 
safe for  courts  of  justice  to  take  upon  them,  without  that  authority,  to»  decide  upon  those 
relations.  But  when  the  crown  has  decided  upon  the  relation  of  peace  or  war  in  which 
another  country  stands  to  this,  there  is  an  end  of  the  question."  3  Campb.  66,  7,  S.  C. 
and  S.  P. 

So  far  were  the  two  governments  of  England  and  the  United  States  from  being  in  a 
state  of  war  when  the  Caroline  was  destroyed,  tiiat  both  were  struggling  to  avoid  such 
a  turn  of  the  excitement  then  prevailing  on  the  frontier,  as  might  furnish  the  least  occa- 
sion for  war.  Both  had  long  maintained  the  relations  of  national  amity ;  and  have  done 
80  ever  since  under  an  actual  treaty.  So  far  from  England  fitting  out  a  warlike  expedi. 
tion  agaii\8t  the  United  States,  or  any  public  body,  she  utterly  disavows  any  such  object ; 
while  on  our  side  we  have  inflicted  legal  punishment  on  the  leaders  of  the  expedition 


% 


to 


MCLEOD  S   TRIAL. 


29 


finally  dispose  of  an 
;uided  upon  a  motion 
m  belongs  primarily 

ould  not  be  regarded 
eation  whether  facts 
at  all,  are  proper  for 
istcd  with  great  zeal, 
lor  over  the  subject 
e  close  of  the  argii. 
on  the  first  question, 
if  which  this  indicu 
n  their  main  topic, 
ossible  during  a  very 

eod  was  a  foreigner. 
,  is,  if  ho  commit  a 
n  Campbell  vs.  Hal!, 
!,  2d  od.  Nay,  says 
awe.     On  Civ.  Gov. 

s,  by  which  counBel 
in  the  event  of  their 
iscl  may,  under  the 
isdiction.  To  show 
3  sought  to  bo  raised 
IS  province  of  Upper 
a  one  of  a  military 
boat  Caroline ;  that 
',  sought  the  Caro. 
r,  and  killed  Durfee, 

sdiciion,  if  the  pre.  _• 
king  of  life,  on  the  ' 
le  law  of  nations,  a 
war-making  power. 
Ingland,  the  Queen, 
by  all  courts  of  jus- 
!  jure,  until  the  na. 
lares  the  contrary. 
(1  Ward's  Law 
hority  for  the  con. 
ies,  however  gene, 
lublic  state  of  war. 
all  the  subjects  of  a 
with  it,  but  without 

between  the  two 
ipaon,  l.'j  East,  81, 
t  of  King's  Bench, 
3an,  (1  p]dw.  Adm. 

determine  in  what 
hat  it  would  be  un- 
'  decide  upon  those 
:ce  or  war  in  which 
Jarnpb.  66,  7,  S.  C. 

Bs  fi-om  being  in  a 
ling  to  avoid  such 
lieh  the  least  occa- 
ty ;  and  have  done 
t  tt  warlike  expedi. 
^8  any  such  object ; 
of  the  expedition 


of  which  Durfee  made  a  part,  on  the  ground  that  England  was  then  at  peace  with  u.o. 
Whatever  hostile  acts  she  did  were  aimed  exclusively  at  private  oft'endera ;  and  if  there 
was  a  war  in  any  sense,  the  parties  were  England  on  one  side,  and  her  rebel  sul*. 
jects,  aided  by  certain  citizens  of  our  own,  acting  in  their  private  capacities  and  contrary 
to  the  wishes  of  this  government,  on  the  other. 

In  speaking  of  public  war,  I  mean  to  include  all  national  wars,  whether  general  or 
partial,  whether  publicly  declared  or  carried  on  by  commissions,  such  as  letters  of  marque, 
mihtary  orders,  or  any  other  authority  emanating  from  the  executive  power  of  one  coun. 
tr>' and  directed  against  the  power  of  another ;  whether  the  directions  relate  to  reprisals, 
the  seizure  of  towns,  the  capture  or  destruction  of  private  or  public  ships,  or  the  per. 
sons  or  property  of  private  men  belonging  to  the  adverse  nation.  I  mean  to  exelude  all 
hostility  of  any  kind  not  having  for  its  avowed  object  the  exercise  of  some  influence  or 
control  over  the  adverse  nation  as  such.  I  deny  that  public  war  in  this  sense  can  be 
made  out  by  affidavit  or  by  any  other  medium  of  proof  than  the  denunciation  of  war  by 
one  or  both  of  the  two  nations  who  arc  parties  to  it. 

There  are  but  three  sorts  of  war — public,  private,  and  mixed.  Grot.  B.  1,  rh.  3,  ^  1. 
Private  war  is  unknown  in  civil  society,  except  where  it  is  lawfully  exerted  by  way  of 
defence  between  private  persons.  To  constitute  a  public  war,  at  last  two  nations  are 
essential  parties,  in  their  corporate  capacities.  Mixed  war  can  be  carried  on  only  be- 
tween  a  nation  on  one  side,  and  private  individuals  on  the  other.  There  is  no  fourth 
kind.     Grot,  ut  supra. 

The  right  of  one  nation,  or  any  of  its  citizens,  to  invade  another,  or  enter  it  and  do 
any  harm  to  its  property  or  citizens,  does  not  arise  till  public  war  be  lawfully  denounced 
in  some  form.  It  does  not  arise  where  one  nation  has  a  quarrel  with  private  persons 
being  within  the  territory  of  another.  Whether  there  be  any  exception  to  this  rule,  I 
shall  hereafter  inquire. 

Much  was  said  in  argument  on  the  assumption  that  the  state  of  hostilities  on  the 
frontier  amounted  to  unsolemn  war.  In  supposing  this  to  be  so,  counsel  come  back  to 
the  very  error  which  they  repudiated  in  more  general  terms.  A  war  is  none  the  less 
public  or  national  because  it  is  unsolemn.  All  national  wars  are  of  two  kinds,  and  two 
only — war  by  pubhc  declaration,  or  war  denounced  without  such  declaration.  The  first 
is  called  solemn  or  perfect  war,  because  it  is  general,  extending  to  all  the  inhabitants 
of  both  nations.  In  its  legal  consequences  it  sanctions  indiscriminate  hostility  on  both 
sides,  whether  by  way  of  invasion  or  defence.  The  second  is  called  unsolemn  or  im. 
perfect  war,  simply  because  it  is  not  made  upon  general,  but  special  declaration.  The 
ordinary  instance  is  a  commission  of  reprisal,  limiting  the  action  of  the  nation  plaintifi^, 
to  particular  objects  and  purposes  against  the  nation  defendant.  It  supposes  a  partial 
grievance,  which  can  be  redressed  by  a  corresponding  remedy  or  action  ;  and  does  not 
authorize  hostility  beyond  the  scope  of  the  special  authority  conferred.  Such  are  several 
of  the  instances  I  have  just  now  mentioned.  But  they  are  no  less  instances  of  public 
war.  The  attack  on  Copenhagen  was  mentioned  on  the  argument  as  an  instance  of 
unsolemn  war.  So  indeed  it  was.  The  British  admiral  had  a  deputation  from  the  war- 
making  power  of  England  to  act  against  the  war-making  power  of  Denmark  ;  to  demand 
the  surrender  of  the  Danish  fleet,  and,  on  refusal,  to  destroy  public  or  private  property, 
or  take  life,  not  as  a  punishment  of  private  oH'endcrs,  but  to  coerce  the  nation.  Why 
was  the  attack  made  ? — Because  Denmark  would  not  surrender  her  navy  voluntarily ; 
and  there  was  danger  that  France  would  take  it  either  by  force  or  under  collusion  on 
the  side  of  Denmark.  Those  who  were  in  arms  on  the  side  of  Denmark,  acted  not  in 
their  own  right,  but  as  agents  of  the  nations  to  which  they  were  subject.  Before  the 
remotest  analogy  can  be  seen  in  this  to  tiie  case  at  the  bar,  the  United  States  must  be 
brought  in  and  made  defendant  in  their  corporate  capacity.  It  will  be  seen,  I  trust,  by 
this  time,  that  the  instance  derogates  not  in  the  least  from  the  distinction  that  runs 
through  all  the  writers  on  the  international  law,  viz,  that  whether  to  constitute  solemn 
or  unsolemn  war,  the  authority  to  act  must  emanate  fi"om  the  war-niaking  power  on  one 
side,  and  be  intended  to  influence  that  power  on  the  other.  Action  under  such  a  power 
is  necessarily  a  collision  between  two  nations ;  and  answers  to  Grotius'  definition,  viz  : 
"  That  is  a  public  war  which  is  made  on  each  side  by  the  authority  of  the  civil  power." 
B.  1,  ch.  3,  §  I.  At  §  4  he  divides  this  sort  of  war  into  sjoleinn  and  unsolemn,  of  which 
latter  he  gives  an  instance  in  B.  3,  ch.  2,  ^  2,  N.  3,  Vid.  Also  2  Ruth.  p.  507  &  .548. 
The  distinction  has  been  followed  to  this  day,  though  the  legal  character  of  unsolemn 
war  has  since  been  changed.  "  Both,"  says  Rutherforth,  "  are  now  lawful.  The  only 
real  effect  of  a  declaration  of  war  is,  that  it  makes  the  w  ar  a  general  one  ;  while  the 
imperfect  sorts  of  war,  such  as  reprisals,  or  acts  of  hostility,  are  partial  or  arc  confined 


1.    I 


1 


30 


GOULD  S    REPORTER. 


i! 


V 


*il 


I! 


'IW 


I    :\'t 


i!'!i| 


:3  pnrtjrular  persons,  or  tilings,  or  places.  In  solemn  wars  all  the  membera  of  one  nation 
.ict  iijjainst  the  other  under  a  general  cuintiiiasion  ;  wheresis  in  publie  wars  which  are 
iiot  solemn,  those  members  of  one  nation  who  act  against  the  other,  act  under  particular 
/;ommisHions."    Ruth.  B.  2,  ch.  9,  §  18.    Vattel,  B.  3,  ch.  15. 

Both  sorts  of  war  are  lawful,  because  carried  on  under  the  authority  of  a  power  hav. 
ing,  by  the  law  of  nations,  a  right  to  institute  them.  In  any  other  war  go  belligerent 
rights  can  be  acquired.  All  captures,  all  destruction  of  property  must  be  illegal ;  and 
ihe  taking  of  life  a  crime.  Short  of  this,  war  cannot  be  carried  into  an  enemy's  coun. 
iry,  for  the  simple  reason  that  there  is  no  war  to  carry  there,  and  no  enemy  against 
whom  it  can  be  exerted.  The  nation  denouncing  war  must  be  explicit.  "  This  makes 
it,"  says  Vattel,  "  formal,  and  so  lawful.  But  nothing  of  this  kind,"  says  he,  "  is  the 
ease  in  an  informal,  illegitimate  war,  which  is  more  properly  called  depredation.  A 
nation  attacked  by  enemies,  without  the  sanction  of  a  public  war,  is  not  under  any  obli. 
gallon  to  observe  towards  them  the  rules  of  formal  warfare.  She  may  treat  them  as 
robbers."  Vattel,  B.  3,  ch.  4,  §  68.  Such  unauthorized  volunteers  in  violence,"  says 
Blaekstonc,  "  are  not  ranked  among  open  enemies ;  but  are  treated  like  pirates  and 
robbers." 

ft  was  accordingly  conceded,  in  argument,  that  the  Canadian  provincial  authorities 
had  no  inherent  power  to  institute  a  public  war.  Vide  2  Ruth.  496,  7,  8.  We  were, 
iiowever,  referred  to  Burlcm,  Pt.  4,  ch.  3,  §  18,  19,  to  show  that  those  authorities  might 
do  so  on  the  presumption  that  their  sovereign  would  approve  the  step ;  and  that  such 
approbation  would  reflect  back,  and  render  the  war  lawful  from  the  beginning.  On  the 
assumption  that  this  indirect  mode  of  instituting  war  had  actually  been  resorted  to, 
counsel  again  bring  themselves  back  to  the  fundamental  error  which  led  to  this  applica- 
tion.  No  one  would  deny  that  if  the  affair  in  question  can  be  tortured  into  war  between 
this  nation  and  England,  the  United  States  might  take  possession  of  McLeod  as  a  pri- 
soner of  war.  In  such  a  case,  there  would  have  been  no  need  of  this  motion.  But 
admitting  the  rule  of  Burlemaqui,  and  that  counsel  might,  by  the  aid  of  England,  get 
up  an  ex  post  facto  war,  for  the  benefit  of  McLeod  ;  this  cannot  be  done  by  an  equivoque ; 
and  especially  not  in  contradiction  to  the  language  of  England  herself.  Neither  the 
provincial  authorities  nor  the  sovereign  power  of  either  country  have,  to  this  day,  cha- 
ractcrized  the  transaction  as  a  public  war,  actual  or  constructive.  They  never  thought 
of  its  being  one  or  the  other.  Both  have  spoken  of  it  as  a  transaction,  public  on  one 
side,  to  be  sure,  but  both  claimed  to  hold  fast  the  relations  of  peace.  Counsel  seem  to 
have  taken  it  for  granted  that  a  nation  can  do  no  pubhc  forcible  wrong,  without  its 
being  at  war,  even  though  it  deny  all  action  as  a  belligerent.  At  this  rate  every  illegal 
order  to  search  a  ship,  or  to  enter  on  a  disputed  territory,  or  for  the  recaption  of  national 
property  even  from  an  individual,  if  either  be  done  vi  et  armis,  and  work  wrong  to 
another  nation  or  any  of  its  subjects,  would  be  public  war,  necessarily  so,  though  the 
actor  should  deny  all  purpose  of  war.  Were  such  a  rule  once  admitted,  England  and 
the  United  States  can  scarcely  be  said  to  have  been  at  peace  since  the  Revolution 
which  made  them  two  nations.  My  endeavor  has  been  to  show,  that  on  the  question 
of  war  or  peace,  there  is  a  quo  animo  of  nations,  by  which  we  are  bound. 

To  prevent  all  misunderstanding  in  the  progress  of  the  argument,  it  is  proper  to  ob- 
serve  farther,  that  an  act  of  jurisdiction  exerted  by  inferior  magistrates,  civil  or  military, 
for  the  arrest  or  punishment  of  individuals,  is  not  public  war  of  either  kind.  So  long 
as  the  act  is  kept  within  legal  compass,  though  its  exertion  be  violent,  where,  for  in- 
stance,  the  object  is  to  suppress  a  riot,  quell  an  insurrection,  or  repel  the  hostile  incur- 
sions of  individuals,  it  is,  though  sustained  by  a  soldiery  in  arms,  only  one  mode  of 
enforcing  the  criminal  law.  It  is  like  calling  out  the  militia  as  a  posse  comitatus  to  aid 
a  sheriff  who  is  resisted  in  the  execution  of  process.  Force  becomes  lawful  where  the 
laws  are  set  at  defiance.  We  see  this  in  the  frequent  resort  to  soldiers  of  the  regular 
army  by  the  English,  in  cases  of  dangerous  riots. — Vid.  Ruth.  B.  2,  ch.  9,  §  9.  Such  a 
state  of  things,  therefore,  confers  no  right  to  act  offensively  against  individuals  who  re- 
side or  sojourn  in  the  neighboring  territory.  Should  they  be  pursued  and  arrested,  or 
killed,  the  act  would  be  a  naked  usurpation  of  authority,  Hke  the  sheriff  of  one  county 
going  into  another  to  execute  process.  "  If,"  says  R""V;"rforth,  B.  2,  ch.  9,  §  9,  "  the 
magistrate,  in  any  instance,  use  even  the  force  with  v  nicii  he  is  intrusted  in  any  other 
manner,  or  for  any  other  purpose  than  is  warranted  by  his  appointment,  this,  as  it  is  his 
own  act,  and  not  the  act  of  the  public,  cannot  be  called  public  war." 

Sensible  that  all  pretence  of  belligerent  right  was  wanting,  it  is  therefore,  in  the  first 
view,  a  lawful  act  of  magistracy  that  the  case  was  sought  to  be  put  by  Mr.  Fox,  both 
in  his  letter  to  Mr.  Forsyth  and  Mr.  Webster.    I  take  the  words  of  his  last  letter,  writ. 


I 


ten 

groil 

Mel 


''.*'<k._ 


•Min 


MCLEOD  S  TRIAL. 


ai 


^mbera  of  one  nation 
lie  wars  which  are 
act  under  particular 

rity  of  a  power  hav. 
war  go  belhgerent 
nu8t  be  illegal ;  and 
)  an  enemy's  coun- 
d  no  enemy  against 
icit.  "  This  makes 
"  says  he,  "  is  the 
;d  depredation.  A 
not  under  any  obli. 
may  treat  them  as 
in  violence,"  says 
d  like  pirates  and 

ovincial  authorities 

i,  7,  8.    We  were, 

3e  authorities  might 

ep;  and  that  such 

Jcginning.     On  the 

f  been  resorted  to, 

led  to  this  applica. 

1  into  war  between 

McLeod  as  a  pri- 

this  motion.     But 

id  of  England,  get 

e  by  an  equivoque  ; 

■self.     Neither  the 

,  to  this  day,  cha- 

'hey  never  thougiit 

:ion,  public  on  one 

Counsel  seem  to 

wrong,  without  its 

rate  every  illegal 

caption  of  national 

work  wrong  to 

V  so,  though  the 

ted,  England  and 

the  Revolution 

on  the  question 

md. 

is  proper  to  ob- 

civil  or  military, 

kind.     So  long 

nt,  where,  for  in. 

he  hostile  incur. 

ily  one  mode  of 

comitatus  to  aid 

lawful  where  the 

rs  of  the  regular 

9,  §  9.    Such  a 

ividuals  who  re- 

and  arrested,  or 

r  of  one  county 

cb.9,  §9,  "the 

ed  in  any  other 

,  this,  as  it  is  his 

3fore,  in  the  first 

Mr.  Fox,  both 

last  letter,  writ. 


ten  after  the  question  hail  bci.n  delii)erately  conaidcrcd  by  his  government :  "  The 
f,'r<)uii(l!<  upon  which  the  Dritisii  ifovcrnment  make  this  diiiiaiid,"  (the  diirrendttr  of 
McLrod,)  "are  these:  that  ihe  transaction  on  account  of  which  Mr.  McLcod  has  been 
arrcstid,  and  is  to  be  put  upon  his  trial,  was  a  transaction  of  a  public  character,  planned 
and  executed  by  persons  liiily  empuwered  by  her  majesty's  colonial  authority,  to  take 
any  steps  and  do  any  acts  wiiicli  might  be  necessary  for  the  defence  of  her  majesty's 
territories,  and  for  the  protection  of  her  majesty's  sui)jects;  and  thai  consequently  those 
subjects  of  her  majesty  who  engaged  in  that  transacliun  were  performing  an  act  of  pub- 
lie  duly,  for  which  they  cannot  bo  made  personally  and  individually  answerable  to  the 
laws  and  tribunals  of  any  foreign  country."  In  the  same  letter  he  re-states  the  opinion 
of  Ills  government,  that  "it  was  a  justifiable  employment  of  force  for  the  purpose  of  de- 
fending the  British  lerriioiy  from  the  unprovoked  attack  of  a  band  of  British  rebels  and 
American  pirates." 

If  this  view  of  the  transaction  can  be  sustained,  it  was  lawful  ah  initio.  It  required 
no  royal  recognition  to  render  it  national.  It  came  within  the  power  which  the  Canadian 
authorities  held  from  England  to  act  in  her  place  and  stead.  So  long  as  they  confined 
themselves  within  the  territorial  line  of  Canada,  they  were  doing  no  more  than  the  na. 
ture  ol'  th'-ir  connection  with  England  required  ;  sustaining  that  absolute  and  exclusive 
jurisdiction  to  which  she  is  entitled  with  every  otl.er  nation.  Whether  they  had  power, 
without  pretence  of  being  engaged  in  a  war  with  the  United  States,  or  could  derive  power 
from  England,  to  fit  out  an  expedition,  cross  the  line,  and  seize  or  destroy  the  property 
and  jiersons  of  our  citizens  in  this  country,  and  whether  any  one  acting  under  such  an 
assumption  of  power  can  be  protected,  is  quite  a  difl'erent  question. 

One  decisive  test  would  be  furnished  by  admitting  that  Durfee  had  committed  a  crime 
against  England,  for  which  he  was  liable  to  arrest  and  trial  in  Canada.  None  would 
pretend  that  any  warrant  from  the  English  nation  could  be  used  to  protect  one  of  her 
officers  from  an  action  of  false  imprisonment,  if  he  had  merely  arrested  the  olVender  on 
this  side  the  line.  No  one  would  pretend  that  a  military  order  and  the  addition  of  the 
Queen's  soldiers  and  sailorb  would,  in  such  case,  strengthen  a  plea  of  justification  ;  nor 
would  the  subsequent  approval  of  the  nation.  This  would  have  no  greater  efl'ect  than 
the  original  authority,  accordingly  it  was  not  pretended  on  the  argument  that  England 
had  any  right  whatever  to  send  and  arrest  Uurfee  as  a  fugitive  from  justice.  The  pre- 
tence  that  she  had  any  such  right  would  have  been  too  absurd  to  bear  the  name  of 
argument.  Nor  is  it  pretended  that  her  magistrates,  civil  or  military,  had  any  power 
within  our  territory  to  seize  and  bind  him  over  to  keep  the  peace  on  England  or  hei 
subjects.  "  We  cannot,"  says  Vettel,  B.  2,  ch.  7,  §  93,  "  enter  the  territory  of  a  nation  in 
pursuit  of  a  criminal,  and  take  him  from  thence.  This  is  what  is  called  a  violation  of 
territory ;  and  there  is  nothing  more  generally  acknowledged  as  an  injury  that  ought  to 
be  repelled  by  every  state  that  would  not  sutler  itself  to  be  oppressed."  The  rule  is  too 
familiar,  even  as  between  the  states  of  this  confederacy,  to  require  that  it  should  be 
msisted  on  at  large. 

But  the  civil  war  which  England  was  prosecuting  against  various  individuals,  was  in. 
sisted  on  as  a  ground  of  protection ;  but  I  am  free  to  admit  that  the  strongest  possible 
color  for  the  extraordinary  right  claimed,  is  to  be  derived  from  taking  the  United  States 
to  stand  in  the  attitude  of  a  neutral  nation  with  respect  to  two  parties  engaged  in  actual 
war;  England  on  one  side,  and  Van  Renssselaer,  IJurfee  and  their  associated  assailants 
on  the  other.  This  is  what  Grotius  calls  mixed  war,  being,  as  he  says,  "  that  which  is 
made  on  one  side  by  public  authority,  and  on  the  other  by  mere  private  persons."  B.  1, 
ch.  3,  (j\.  Rutherford  retains  the  same  distinction  under  the  same  name,  in  character- 
izing  a  contest  between  a  nation  as  such  and  irs  external  enemies  coming  in  the  form  of 
pirates  or  robbers;  associates,  he  says,  who  act  together  occasionally  and  are  not  united 
into  civil  society.  Ruth.  B.  2,  ch.  9,  §  9.  The  several  invasions  of  Enj;land  by  Perkin, 
Warbeek,  and  Lord  Herise,  mentioned  in  1  IIul.  P.  C.  IG4,  the  former  of  which  is  also 
noticed  in  Calvin's  case,  7  Co.  Rep.  11-12,  are  instances  of  such  a  war;  the  books  say. 
ing  that  in  England  such  olTenders  must  be  tried  by  martial  law,  for  a  reason  which  I 
shall  hereafter  consider.  Let  Durfee,  then,  be  regarded  as  England's  enemy,  who  has, 
with  Wells,  the  boat  owner,  and  his  boat,  taken  shelter  in  the  neutral  territory  of  the 
United  States.  Had  England  any  right  to  follow  him  there  ?  None,  say  the  books,  not 
even  in  the  heat  of  contest,  had  he  been  an  enemy  pursued  and  flying  for  shelter  across 
the  line.  1  Kent's  Com.  119-20.  Independently  of  fresh  pursuit,  no  writer  on  the  law 
of  nations  ever  ventured  the  assertion  that  one  of  two  belligerents  can  lawfully  do  any 
hostile  act  against  another  upon  neutral  ground.  If  it  be  not  a  plain  deduction  from 
common  sense,  yet,  on  principles  in  which  publicists  agree,  all  rightful  power  to  harm 


n 


^  I 


[II 


1( 


(  Vi 


89 


GOULD  S    REPORTER. 


the  pereon  or  property  of  any  one  dropped  from  tlip  hands  of  McLcod  and  his  aasociates 
the  moment  they  entered  a  country  with  which  thtur  sovereign  was  at  peace.  Noexcep. 
tion  can  bo  made  consistently  with  national  safety.  Make  it  in  favor  of  the  subordinate 
civil  authorities  of  u  nei/^hboring  slate,  and  your  territory  is  open  to  its  constables;  in 
favor  of  their  military,  and  you  let  in  its  soldiery  ;  in  favor  of  its  sovereign,  and  you  are 
a  slave.  Allow  him  to  talk  of  the  acts  and  machinations  of  our  citizens,  and  send  over 
his  soldiers,  on  the  principle  of  protection,  to  burn  the  property  or  take  the  lives  of  the 
supposed  oflenders,  and  you  give  up  to  the  midnight  ossaulc  of  exasperated  strangers  the 
dwelling  ond  life  of  every  inhabitant  on  the  frontier  whom  they  may  suspect  of  a  dispo. 
silion  to  aid  their  enemies.  Never  since  the  treaty  of  1783,  had  England,  in  time  of 
peace  with  up,  any  inure  right  to  attack  an  enemy  at  Schlosser,  than  would  the  French 
have  at  London  in  time  of  peace  with  England. 

"  Tbe  i'ull  domain,"  says  Vuttrl,  "is  necessarily  a  peculiar  and  executive  right.  The 
general  domain  of  a  nation  is  full  and  absolute,  since  there  exists  no  authority  upon 
earth  by  which  it  can  bo  limited  ;  it  therefore  excludes  all  right  on  the  part  of  foreign- 
ers."— B.  2,  ch.  7,  §  79.  The  same  writer  defines  the  jurisdiction  of  courts  within  that 
domain,  "  The  sovereignty  united  to  the  domain  establishes  the  jurisdiction  of  the  na- 
tion  in  her  territories.  It  is  her  province  to  exercise  justice  in  all  the  places  under  her 
jurisdiction  ;  to  take  cognizance  of  the  crimes  committed,  and  the  difrerciiccs  that  arise 
in  the  country."  Id.  §  84.  "  It  is  unlawful,"  says  the  same  writer,  "  to  attack  an  enemy  in 
a  neutral  country,  or  to  commit  in  it  any  other  act  of  hostility."  "  A  mere  claim  of  ter- 
ritory,"  says  Sir  William  Scott,  a  British  judge  of  admiralty,  "  is  undoubtedly  very  high  ; 
when  the  fact  is  cstablinhed,  it  overrates  every  other  consideration."  In  the  Vrow,  Anna 
Catharina,  5  Rob.  Adm.  Rep.  20-1.  And  he  refused  to  recognize  a  right  of  capturing 
an  enemy's  ship  within  a  marine  league  of  our  coast.  The  Anna  Laportc,  id.  332.  "  We 
only  exercise  the  rights  of  war  in  our  own  territory,"  says  Bynkershoek,  "  or  in  the  ene- 
my's,  or  in  a  territory  which  belongs  to  no  one."  Quest.  Jur.  Pub.  B.  1,  ch.  8.  "  There 
is  no  exception,"  says  Chancellor  Kent,  "  (o  the  rule  that  every  voluntary  entrance  into 
neutral  territory  with  hostile  purposes,  is  absolutely  unlawful."  1  Kent's  Com.  118,  4th 
ed.  "The  jurisdiction  of  courts,"  says  Marshall,  ch.  J.  "is  a  branch  of  that  which  is 
possessed  by  the  nation  as  an  independent  sovereign  power.  The  jurisdiction  of  the 
nation  within  its  own  territory  is  necessarily  exclusive  and  absolute.  It  is  susceptible  of 
no  limitation  not  imposed  by  itself:  any  restriction  derived  from  an  external  source 
would  imply  a  diminution  of  its  sovereignty  to  the  extent  of  the  restriction,  and  an  in.: 
vestment  of  that  sovereignty  to  the  same  extent  in  that  power  which  could  impose  such 
restriction."  That  these  are  not  rules  of  yesterday,  but  have  formed  a  part  of  the 
acknowledged  law  of  nations  for  nearly  two  thousand  years,  may  be  seen  in  Grotius, 
B.  3,  ch.  4.  §  8,  N.  2.  He  says  we  may  not  kill  or  hurt  an  enemy  in  a  country  at  peace 
with  us.  "  And  this  proceeds  not  from  any  privilege  attached  to  their  persons ;  but  from 
the  right  of  that  prince  in  whose  domains  they  are.  For  all  civil  societies  may  ordain 
that  no  violence  be  offered  to  anyone  in  their  territories  but  by  a  proceeding  in  a  judicial 
way,  as  we  have  proved  out  of  Euripides. 

'  If  you  can  charge  these  guests  with  an  offence,  do  it  by  law ;  forbear  all  violence.' 
But  in  courts  of  justice  the  merit  of  the  person  is  considered,  and  this  promiscuous  pur- 
pose of  hurting  each  other  ceases.  Livy  relates  that  seven  Carthaginian  gallies  rode  in  a 
port  belonging  to  Lyphax,  who,  at  that  time,  was  at  peace  both  with  the  Carthaginians 
and  Romans  ;  and  that  Scipio  came  that  way  with  two  gallies.  These  might  have  been 
seized  by  the  Carthaginians  before  they  had  entered  the  port,  but  being  forced  by  a  strong 
wind  into  the  harbor,  before  the  Carthaginians  could  weigh  anchor,  they  durst  not  as^ 
sault  them  in  the  king's  haven."  Several  more  modern  instances  of  a  like  character  are 
stated  by  Molloy  de  Jur.  Mar.  B.  1,  ch.  1,  §  16.  It  is  said  to  be  a  rule  of  the  common 
law  of  nations,  that  not  only  must  the  parties  refrain  from  hostilities  while  in  a  neutral 
port,  but  should  one  sail,  the  other  must  not,  till  24  hours  after.  Marteus'  L.  of  Nations, 
B.  8,  ch.  6,  §  6,  note.  And  a  doctrine  about  as  strong  was  laid  down  by  Sir  William 
Scott,  in  the  case  of  the  Twee  Gebroeders,  3  Rob.  Adm.  Rep.  162. 

To  apply  these  authorities :  the  affidavit  of  McLeod  suggests  that  Durfee  had,  on  the 
day  before  he  was  killed,  aided  in  transporting  military  stores  to  Navy  Island,  and  sur- 
mises that  he  intended  to  continue  the  practice.  I  put  it  again,  that  the  war,  if  any,  was 
by  England  against  him  and  his  associates — not  against  the  United  States..  But  what 
right,  I  again  ask,  had  she  to  pursue  him  into  a  territory  at  peace  ?  That  she  had  none 
I  have  shown  from  her  own  judge  sitting  in  the  forum  of  nations,  from  one  of  our  judges 
sitting  in  the  like  forum,  from  authoritative  publicists,  and  from  all  antiquity.  I  have 
shown  that  even  panic  faith  felt  itself  bound  to  let  an  enemy  go  free  whom  it  accident- 


4 


■I 

■I 


;i!ii 


I 

I 


MCLEOD  S  TRIAL. 


33 


)d  and  his  associateB 
it  peace.  No  uxcep. 
jr  of  tho  subordinate 

0  its  constabios ;  in 
fcrcign,  and  you  are 
izcns,  and  send  over 
taite  the  hvea  of  tho 
derated  strangem  tho 
y  suspect  of  a  dispo. 
England,  in  time  of 
ri  Would  the  French 

xecutive  right.  The 
i  no  authority  upon 

tho  part  of  forcign- 
f  courts  within  that 
risdiction  of  the  na. 
le  places  under  her 
ifferencca  that  arise 

attack  nn  enemy  in 
L  mere  claim  of  ter- 
loubtedly  very  high ; 

In  the  Vrow,  Anna 
a  right  of  capturing 
)orte,  id.  332.  "  We 
ek,  "  or  in  the  ene- 
\.  l.ch.S.  "There 
intary  entrance  into 
em's  Com.  118,  4th 
ch  of  that  which  is 

1  jurisdiction  of  tho 
It  is  susceptible  of 

an  external  source 
triction,  and  an  in.: 
.  could  impose  such 
med  a  part  of  the 
be  seen  in  Grotiyus, 
a  country  at  peace 
persons ;  but  from 
ocieties  may  ordain 
ceding  in  a  judicial 

)ear  all  violence.' 
3  promiscuous  pur- 
an  gallics  rode  in  a' 
1  the  Carthaginians 
3e  might  have  been 
J  forced  by  a  strong 

they  durst  not  ack 
1  like  character  are 
ale  of  the  common 

while  in  a  neutral 
;us'  L.  of  Nations, 
ffn  by  Sir  William 

Durfee  had,  on  the 
vy  Island,  and  sur- 
Jic  war,  if  any,  was 
States.  But  what 
That  she  had  none 
one  of  our  judges 
antiquity.  I  have 
whom  it  accident. 


ally  met  on  neutral  ground.  Within  the  territory  of  a  nation  nt  peace,  all  belliq[cron'. 
power,  all  brllij^crcnt  right,  is  jiarnlyzi.il.  They  have  paisscd  from  tho  doniiiiiuii  wl'  iirms 
to  thai  of  law.  "No  vi()]cii(;t)  can  be  olVered,'*  nays  (irotius;  "  but  you  muBt  proccod  in 
ajui'iciiil  wiiy."  'I'hi;  only  olliiicr'  ai;uin.-*t  ourhiw  »vliich  Diirfrr  }i;iil  coinmitud,  was  ':\ 
Kou'wvj,  on  iodl  A  hosiiii!  expeditinn  ii:,'ainat  Eiigland,  with  whom  wo  wen'  at  ptin'i'.  .Sj 
l";ir  I  iidinit  ho  was  guilty  iicciMdiii;,'  to  the  HiiiigcHiinii  in  McI. rod's  allidavit.  Ho  had 
nwdc  hiin.xclf  a  piiiicipal  in  tli<!  iiirijrL'fcsioii  of  .McKc  iizio  and  (ttlicis;  for  ihirc  tire  nj 
acCLssorics  in  mi.-dciin  imnr.  The  courta  were  ojicu.  Why  did  iioi  i;ii;^laiiil  pri  fir  hi;r 
coinphiiiit  ?  Was  it  I'DUipi'tent  fur  lur  to  allc;;!!  ilint  mir  justice  was  too  iiiihl  or  ino 
taiily,  and  tlitfcfore  sulistiiutc  the  tiiuiirand  and  musket  '  To  admi*.  sticli  a  ri^'lit  of  in- 
tcrlcrciicc  on  any  tjroiiiid  or  in  any  way,  says  Marpiuil!,  would  bf  a  pinpurtiuniil  diiui. 
iiutioii  iif  our  own  Hovcrcifjiuy,  of  which  judicitil  powi  r  intik! -i  ;i  [)art.  " 'I'lii;  law  of 
nations,"  xiiyH  RiiilitTtorili,  "  is  not  the  mily  nieiwurc  cif  what  is  rit;lit  or  wruii;;  in  the 
intcrc  lurHc  nf  nations  with  each  other,  f^vc  ly  nation  lia.s  n  rit,'lit  to  (IrtcriniiK.'  by  \)v>\. 
'.iv(;  Inw,  upon  wluit  OL'casioMs,  for  wiiat  piirpoMis,  and  in  what  nunibiTs  t'oiciniKrH  t'lml! 
be  uljowcd  to  uoine  within  its  territories."  liiitli.  1). 'J,  t;ii.  U,  sec.  G :  X'uitil,  1!.  2. 
oh.  7,  §  IM. 

It  I'ollowa  from  tho  authorities  cited,  that  ari;jht  to  carry  on  a  mix-rl  w  ar  ncvi  r  cxfcndi* 
mto  tilt  iLTritory  of  a  nation  at  i)Lacr.  It  can  be  cxercihcd  on  the  hi.'^li  sens  only,  or  in 
a  territory  which  i.-f  vacant  and  beloucin:?  to  noiiody.  It  is  in  modern  law  contiii'id 
mainly  to  tin  ra.s(!  ol' piratfs.  But  even  these  can  not  bo  arresttnl  in  the  territory  ot'  f. 
foreign  nation  at  pcaco  with  the  sovereign  of  the  arresting  ship.  MoUov  dc  Jiir.  Mar. 
B.  1,  ch.  1,  §  (J. 

Admitiinff,  then,  that  England  might  protect  a  in»n  agtiinst  our  jurisdiction  by  saying 
he  did  a  pul)lic  act  under  her  authority,  does  it  not  liehove  her  at  least  to  show  that  she 
was  actinif  within  the  limit  of  her  own  jurifdiciion,  especially  where  she  has  prescribed 
them  to  herself?  Shall  her  declaration  serve  to  dejjrivu  na  of  power  where  she  is  f\ 
ceeding  her  own  ?  And  this  bring><  oim  to  inquire  wheth(.'r  the  transaction  in  questii'n 
be  such  as  any  national  right  so  I'ar  examined  can  sanction.  She  puts  herself,  as  we  have 
seen,  on  the  law  of  defence  and  necessity;  ;ind  nothing  i-i  be'ter  defined  nor  more  fami- 
liar in  any  sjvstem  of  jurisprudence,  than  the  juncture  of  circunistances  which  ean  alor;;- 
tolerate  the  action  of  that  law.  A  force  which  the  defender  has  a  right  to  resist  tn'i'-; 
itsclf.be  within  striking  distance.  It  nmst  be  menacing,  and  a|)parenily  able  to  iiifiici 
physical  injury,  unless  ])revented  by  the  resistance  wliich  he  opposes.  The  rights  of 
Bclf^defence  tind  the  defence  of  others  standing  in  certain  relationa  to  the  defender,  d.;- 
pend  on  the  same  ground — at  least  they  are  linii'cd  by  tht;  same  principle.  It  will  be 
PUlficient,  therefore,  to  inquire  of  the  riirht  so  far  as  this  is  strictly  personal.  All  writer^J 
concur  in  the  language  of  Blackstone,  [3  Com.  4,]  that,  to  warrant  its  exertion  at  all,  the 
defender  must  be  forcibly  assaulted.  He  may  then  repel  force  by  force,  because  he  can- 
not say  to  what  length  of  rapine  or  ci'iclty  tho  outrage  may  be  carried,  unless  it  wer« 
admissible  to  oppose  one  violence  vth  another.  "  But,"  he  adds,  "  care  must  bo  taken 
that  the  resistance  does  not  exceed  the  bounds  of  mere  defence  and  prevention;  for  then 
the  defender  would  himself  become  the  aggressor."  The  condition  upon  whi(;h  the  right 
is  thus  placed,  and  the  limits  to  which  its  exercise  is  confined  by  this  eminent  writer,  is 
enough  of  itself,  when  compared  with  McLeod's  affidavit,  to  destroy  all  color  for  saying 
the  case  is  within  that  condition.  The  Caroline  was  not  in  the  act  of  making  an  assault 
on  the  Canada  shore  ;  she  was  not  in  a  condition  to  make  one  ;  she  had  returned  from 
her  visit  to  Navy  Island,  and  was  moored  in  our  own  waters  for  tlie  night.  Instead  of 
meeting  her  at  the  line  and  repelling  force  by  firce,  the  prisoner  and  his  associates  came 
out  under  orders  to  sefk  her  wherever  they  could  find  her,  and  were  in  fa(;t  obliged  to 
sail  half  the  width  of  the  Niagara  river,  after  they  had  entered  our  territory,  in  order  to 
reach  the  boat.  They  were  the  assailants ;  and  their  attack  might  have  been  legally 
repelled  by  Durfee  even  to  the  destruction  of  their  lives.  The  case  made  by  the  afTidavir 
is  in  principle!  this:  a  man  believes  that  his  nei::hbor  is  preparing  to  do  him  a  persona) 
injury.  He  goes  half  a  mile  to  his  house,  breaks  the  door,  and  kills  him  in  his  bed  at 
midnight.  On  being  arraigned,  he  cites  the  law  of  nature,  and  tells  us  that  he  was 
attacked  by  his  neighbor,  and  slew  him  on  the  principli!  of  mere  defence  and  prevention  ; 
or,  in  the  la.iguago  of  the  plea,  for  an  assault  demesne — "he  made  an  a.ssault  upon  me, 
and  would  then  and  there  have  beat  me,  had  I  not  immediately  defended  myself  against 
him;  wherefore  I  did  then  and  there  det'end  myself  as  I  lawfully  might  for  the  cause 
aforesaid  ;  and  in  doing  so,  did  necessarily  and  unavoidably  beat  liim,  doing  him  on  such 
occasion  no  unnecessary  damage.  And  if  any  damage  happened,  it  was  occasioned  by 
his  assault  and  my  necessary  defence." 


* ,  J 


.1  '<i 

i 

f 


34 


OOULD  S   REPORTER. 


'"'V 


"  To  cxcuso  homiridfi  in  Bclf.drfpncc,"  says  aiinthrr  F^nfjlipli  writrr,  "  tlin  net  must 
not  be  pronieditntcd.  Ilr  rniist  first  rctrcnt  as  fur  um  hr  Hiifcly  can,  to  avoid  liiti  violi-nrc 
thrraicnud  l)y  the  party  wiiom  he  is  oidi^iii  to  kill.  Tiii'  nircnt  must  hn  willi  iiii  lioni'si 
intPfitiiin  'o  escape  ;  and  he  must  flee  as  fur  as  he  coiiveniciiily  riin  by  rensoii  uf  homK' 
inipediinent,  or  as  far  as  the  flereeiies's  of  liis  aHsuuit  will  ]m  riiiit  him,  ami  liieii,  in  his 
dcfeiirr,  he  may  kill  his  adversary."     1  kuss.  on  Cr.  ■'ill. 

Sueh  is  the  law  of  nnxed  war,  on  neutral  j,'r(iuiid.  The  hooks  ciicd  are  treaiinff  ol 
no  narrow  technical  rule  peeuliar  lo  llie  eonmion  law;  but  the  law  of  nature  and  of 
nations,  the  same  every  where,  of  such  pnranmunt  price  an  no  nnmieipal  or  iiiierniuional 
law  could  ever  overcome  ;  anti  intelliitjible  to  every  living  soul.  It  is  etisily  applied  botii 
OS  betwer II  mdividiial^  in  civil  society  and  nations  nt  pcsu'c.  l'ii«!>iiij;  the  boiindarieji 
of  strict,  not  fancied  necessity,  the  remedy  lie.s  in  suit  liy  the  State  or  citizen  whoso 
ritjhls  have  been  violated,  or  by  demandiiiff  the  person  of  the  mischievous  fui,'itive  who 
has  l>roken  the  criminal  law  of  a  foreij,'n  soverei^Mi.  Accurdiiis^ly,  PtiHiindorf,  afier  con. 
sideriiiy  the  rights  of  private  war  in  a  state  of  nature,  adds  :  "  But  we  must  by  no 
means  allow  nn  equal  liberty  to  the  rnend)ers  of  civil  Stat(!s.  For  here,  if  the  adver- 
sary be  a  foreigner,  wo  may  reaist  and  repel  him  any  way  at  the  instaiii  when  be  comes 
violently  upon  us.  But  we  cannot,  without  the  sovereiiin's  eomiirmd,  either  assault 
him  while  his  mischief  is  only  in  machination,  or  revenue  t)urselves  upon  him  idler  he 
has  performed  the  injury  agidnst  us."  Puf.  B.  2,  ch.  .'>,  §  7.  Tlie  sovereign's  conmiand 
must,  as  we  have  seen,  in  order  to  warrant  such  eonduiJt  in  Lis  subject,  be  a  denuncia- 
tion  of  war. 

England,  then,  could  legally  impart  no  protection  to  her  .subjects  concerned  in  the 
destruction  of  the  Caroline,  either  as  a  party  to  any  Wa  ■,  to  any  act  of  public  jurisdic- 
tion  exercised  by  way  of  defence,  or  sendinir  her  seivunts  into  a  territory  at  peace. 
That  her  act  was  one  of  mere  arbitrary  uburpation  v.'iis  not  denied  on  the  argument, 
nor  has  this,  that  I  am  aware,  been  denied  by  any  one  except  England  herself.  1  should 
not,  therefore,  have  examined  the  nattire  of  the  transaction  to  any  consideriWc  extent, 
had  it  not  been  necessary  to  see  whether  it  was  of  a  character  belonging  to  the  law  ot 
war  or  peace.  I  am  entirely  satisfied  it  belongs  to  tlie  latter;  that  there  is  nothing  in 
the  case  except  a  body  of  men,  without  color  of  authority,  bearing  muskets,  and  doing 
the  deed  of  arson  and  death;  that  it  is  impossible  even  for  diplomatic  ingenuity  to  make 
it  a  case  of  legitimate  war,  or  that  it  can  plausibly  claim  to  come  within  any  law  of  war, 
public,  private,  or  ndxed.  Even  the  Pniish  minister  ia  too  just  to  call  it  war ;  the  Bri- 
tish government  do  not  pretend  it  was  war. 

The  result  ia,  that  the  fitting  out  of  vhe  expedition  was  an  unwarrantable  act  of  ju- 
risdiction  exercised  by  the  provincial  government  of  Canada  over  our  citizens.  The 
movements  of  the  boat  had  been  watched  by  the  Canadian  authorities  from  the  opposite 
ehore.  She  had  been  seen  to  visit  Navy  Island  the  day  before.  Those  authorities, 
being  convinced  of  her  delinquency,  sentenced  htr  to  be  burned ;  an  act  which  all  con- 
cerned knew  would  seriously  endanger  the  lives  of  our  citizens.  The  sentence  was, 
therefore,  equivalent  to  a  judgment  of  death ;  and  a  bmly  of  soldiers  were  sent  to  do 
the  office  of  executioners. 

Looking  at  the  case,  independently  of  British  power,  no  one  could  hesitate  in  assign- 
ing the  proper  character  to  sueh  a  transaction.  The  parties  concerned  having  acted 
entirely  beyond  their  territorial  or  magisterial  power,  are  treated  by  the  law  as  indivi- 
duals  proceeding  on  their  own  responsibility.  If  they  have  burned,  it  is  arson ;  if  a 
man  has  been  killed,  it  is  murder. 

This  brings  us  to  the  great  question  in  the  cause.  We  have  seen  that  a  capital  offence 
was  comtnitted  within  our  territory  in  time  of  peace ;  and  the  remaining  inquiry  is, 
whether  England  has  placed  the  offenders  above  the  law  and  beyond  our  jurisdiction, 
by  ratifying  and  approving  sueh  a  crime.  It  is  due  to  her,  in  the  first  place,  to  deny 
that  it  has  been  so  ratified  and  approved.  She  has  approved  a  public  act  of  legitimate 
defence,  only.  She  cannot  change  the  nature  of  things.  She  cannot  turn  that  into 
lawful  w  ar  which  was  murder  in  time  of  peace.  She  may,  in  that  way,  justify  the  of. 
fender,  as  between  man  and  his  own  goverimicnt.  She  cannot  bind  foreign  courts  of 
justice  by  insisting  that  what,  in  the  eye  of  the  whole  world  was  a  deliberate  and  pre- 
pared attack,  must  be  protected  by  the  law  ot  self-defence. 

In  the  second  place,  I  deny  that  she  can,  in  time  of  peace,  send  her  men  into  our 
territory,  and  render  them  impervious  to  our  laws,  by  embodying  them,  and  putting 
arms  in  their  hands.  She  may  declare  war ;  if  she  claim  the  benefit  of  peace,  as  bo£ 
nations  have  done  in  this  instance,  the  moment  any  of  her  citizens  enter  our  territory. 


the\ 

and 

I 

th. 
•let 

C;i 
sti'ii 

boM 

sold 

MUrl 

(;u| 

we 

rive 

whr 

was 

coul 

of 

in 

may 


I'Jili; 


/ 


MPLKOn  S    TRIAL. 


ritnr,  "  thn  net  must 
to  avoid  iho  violciirr 
1st  \w  with  till  lioiii'si 
I  liy  rciisoii  ()('  HoiiU' 
him,  uiid  tiii'ii,  in  liis 

?iicd  nio  trnaiinR  of 
nv  (if  nniiirc  anil  of 
fipiil  <ir  iiiicnuitional 
la  ciiitily  [ippjicd  hntli 
^iiur  ilic  Ixiiiiidarius 
I''  (ir  citizen  whow 
'licvous  fiii,'iiivo  wlio 
'iirti'ndoiC,  iit'iiT  coil- 
Hut  we  uiiiHt  Iiy  MO 
'  here,  il'  llm  ndvcr- 
taut  wlieii  be  conies 
irind,  citlicr  assault 
iil'oii  liini  tiller  lie 
ivcrcicrii's  coiuintmd 
L'ct,  be  a  duiunicia- 

s  concerned  in  the 
t  of  public  jiiriBdic. 
I  territory  at  peace. 
1  on  tho  arffument, 
id  herself.  1  should 
lonsideriblo  extent, 
ingiu^  to  the  law  ot 
there  is  nothing  in 
luiislu'ts,  and  doiny 
e  in^'cnuity  to  make 
hill  any  law  of  war, 
;all  it  war ;  the  Bri- 

rrantable  act  of  ju- 
our  citizens.  The 
s  from  the  opposite 
Those  authorities, 
act  which  all  con- 
I'he  sentence  was, 
were  sent  to  do 

hesitate  in  assign- 
rned  having  acted 
/  the  law  as  indivi. 
d,  it  is  arson ;  if  a 

It  a  capital  offence 
laining  inquiry  is, 
d  our  jurisdiction, 
firet  place,  to  deny 
!  att  of  legitimate 
lot  turn  that  into 
way,  ju.~tify  the  of- 
foreign  courts  of 
Jeliberate  and  pre- 

her  men  into  our 
them,  and  putting 
of  peace,  as  both 
nter  our  territory, 


thoy  are  as  completely  olino.viouH  to  puni«hmont  by  our  law,  an  if  they  had  been  hnti 

niiti  iilwavH  icsulcil  111  this  country. 

1  will  not,  thcrcrorc,  dispute  the  conslruciioii  which  counsel  put  upon  the  lautruajrc  m 
the  iii'tM  of  l'liif,'li"i'''  '1'"  '''^t  'h<'  law  of  lilt'  tiuiisiiclioii,  I  will  eont'eile  that  slic  bad  [n 
'ic!  oi  piii'litiiiu'iit,  t'otifi  ri'i  (1  all  the  power  \\liii'li  ciiii  be  conieiMlcil  lor  in  liiliiiir  of  tbr 
Ciiiitiiliaii  iiuiiioniii  s,  as  far  sis  .-hi'  coiilil  do  ho.  Tiiiii,  rceiiinj,'  the  diiiitriT  from  piriiical 
steiiiiilioais,  she  bud  iiiitliori/iii  tiny  coloin  I  of  lirr  iiriiiy  or  inililKi,  on  sii^peciini;  ibat  u 
bo!it  lyiuK  ill  our  waUrs  iniiiKlcd  ilicKiilly  to  iis»aiili  ilic  Caiinilu  shore,  lo  send  a  liJe  <>l 
soldiers  in  the  day  or  iiiulit  nine,  burn  llit^  boat,  ami  destroy  llie  lives  of  (be  erew.  Tliai 
su<'li  a  statute  should  be  oxci'utt  d  ;  but  tluit  one  cjI'  ibe  soldirrs  lailiiiL;  lo  liiiike  bis  I's- 
eajte,  slioiild  be  arft  -^ted,  and  jib  ad  the  act  of  parliaim  lit.  Solicit  an  act  would  operalf 
well,  1  iidiiiit,  at  (.'bippewa,  mid  until  the  imii  hud  riiiilu'd  ilu'  thread  of  tin,'  Niiiijarii 
tivvr.  Il  woulil  lie  ill!  iiiipiMctrabJe  shield  till  they  fIioiiIiI  eross  tb(^  line  of  that  eountrv 
where  parliaiiicnt  have  jiiri-dietiun.  Hiyoiid,  I  need  not  say  it  must  be  considered  us 
waste  paper.  Kvcii  a  sulisi  iiiieiit  Hintiiie,  rutilyiiif:  and  apiiroviiiit  the  orlHiiiid  iiiiiliiiritv, 
could  add  notliiny  to  the  protection  pioH'crcd  by  the  lirst.  It  would  lie  but  the  jimciioii 
of  two  nullities.  So  says  Mr.  Locke,  (on  Gov.  li.  :J,  eh.  Ill,  sect.  !^3!),)  of  a  kiiiu  even 
in  Ilia  own  doiniiiions  :  "  In  svbatsoever  he  has  no  aulhority,  there  he  is  no  kiiu,',  and 
may  be  resisted  ;  Cor  wheresoever  the  authority  eesises,  the  kiiiL;  ceases  too,  and  become,- 
like  other  men  who  have  no  authority."  I  shall  not  cite  books  to  show  that  the  Queen 
of  Enplund  has  no  authority  in  this  state  in  n  time  of  peace, 

I  will  suppose  a  stronger  case  ; — that  England,  being  at  war  with  France,  should,  by 
statute  or  by  order  of  the  Queen,  auihorizo  her  soldiery  to  enter  our  territory  and  make 
war  upon  such  French  residents  as  might  be  plotting  any  mischief  against  her.  Could 
one  of  her  soldiers  indicted  for  the  murder  of  a  French  citizen  jilcad  such  a  statute  or 
order  in  bar?  If  be  could  not  as  against  a  stranger  and  sojourner  in  our  land,  I  need 
not  intpiire  whether  the  aanii!  iiieasiire  of  protection  be  due  to  Durfee,  our  fellow. citizeii. 

"  The  lawn  of  no  nation,"  Kays  Mr.  Justice  Story,  "  can  justly  extend  beyond  its  own 
territories,  except  so  far  as  it  regards  its  own  eiiiz(?ns.  Tliey  can  have  no  force  to  con- 
trol the  sovereignty  or  rights  of  any  other  nation  within  its  own  jurisdiction.  It  would 
be  monstruus  to  suppose  that  our  revenue  officers  were  authorized  to  enter  into  forei;,'ii 
ports  and  territories  for  the  purpose  of  seizing  vesscds  wliieb  had  ollended  against  oui 
laws."  The  ApoUoii,  9  Wheat.  Rep.  3()2-37I.  He  has  examined  the  question  at  large 
in  his  book  on  the  conflicts  of  laws,  eh.  2,  §  17  to  22,  p.  19  of  2d  ed.  The  result  is,  thai 
no  nation  is  bound  to  respect  the  laws  or  executive  acts  of  any  foreign  government  in. 
tended  to  control  and  protect  its  citizens  while  temporarily  or  permanently  out  of  their 
own  country,  until  it  first  declare  war.  Its  citizens  are  then  subject  to  the  laws  of  war. 
Till  that  comes  they  are  absolutely  bound  by  tho  laws  of  peace.  While  this  prevails,  a 
foreign  executive  declaration  saying,  "  My  subject  has  offended  against  your  criminal 
laws.  I  avow  his  act.  Punish  me  ;  but  impute  nothing  to  him,"  is  a  nullity.  As  well 
might  a  nation  seed  a  company  of  soldiers  to  contract  debts  here,  and  forbid  them  to  be 
sued,  saying,  "  The  debt  was  on  my  account,  discharge  my  men,  and  charge  it  over 
against  me  !  "  Indeed  it  was  urged  on  the  argument  that  the  letter  of  Mr.  Fox  had 
taken  away  the  remedy  of  Wells,  the  boat  owner,  by  an  action  of  trespass  againt  Mc- 
Leod  for  burning  the  boat.  This  action  having,  it  seems,  been  settled,  counsel  resorted 
to  it  as  an  illustrative  case.  Another  action  brought  against  him  for  shooting  a  horse  on 
the  saiiK!  occasion,  it  was  said  is  also  defeated  by  the  same  principle.  Counsel  spoke  as 
if  Sclilosser  hud  undergone  a  stick,  and  its  booty  had  become  matter  of  belligerent 
right  ill  the  soldiery.  Surely  the  imaginations  of  counsel  must  have  been  heated.  It 
seems  necessary  to  remind  iheni  again  and  again,  even  in  affirmance  of  thrir  own  ad- 
misgion,  that  we  are  sitting  to  administer  the  laws  of  a  country-which  y/aa  at  peace 
when  she  sent  in  her  soldiery.  If  they  mean  that  the  ajiproval  and  demand  in  Mr. 
Fox's  letter  should,  ueder  the  law  of  peace,  have  the  sweeping  cfleet  which  is  claimed 
for  it,  (hey  are  bound  to  show  that  the  royal  ninndatc  improves  by  importation.  The 
Queen  has  no  power  at  home  to  take  away  or  suspend,  for  a  moment,  the  jurisdiction  of 
her  own  courts.  Nor  would  a  command  to  discharge  any  man  without  trial  who  should 
be  suspected  of  having  murdered  her  meanest  subject,  be  deemed  a  venal  error.  It  in 
justly  a  source  of  tho  Briton's  pride  that  the  law  by  which  his  life  and  property  an; 
protected  cannot  be  suspended  even  by  his  monarch  ;  that  the  sword  of  Justice  is  boldert 
by  her  own  independent  ministers,  as  a  defence  for  those  who  do  well ;  but  constantly 
threatening,  and  ready  to  descend  upon  the  violator  of  property  or  personal  safety,  aa 
the  instrument  of  a  municipal  law  which  know '  not  of  any  distinction  between  the 
throne  and  the  cottage  ;  a  law  constantly  struggling,  iii  theory  at  least,  to  attain  a  per- 


I 


I' 


til 


).l 


U\ 


36 


OOm.D  S    RRPOKTKR. 


|i(l  l»y  nil  orilcr  Iroin  our  (JDVcriiriicnt, 
Mdliiii'in.     Hut  .should  ('iiii/,'rfMS  [iaH8  u 


fee  ion  ihcit  nholl  lirinp;  all  on  o«rth  to  ilo  it  rrvrroncd ;  tlip  ffrraif.Hi  at  fponng  ita  power* 
iiiifl  ihi'  li'iiHi  tin  iiDi  unwurthy  of"  iix  into.     'I'liitt  ciim-  h  our  own, 

MiK'li  wiiM  Nnnl  on  tlir  tir^funii'tit  iiboiii  tlut  (ixtrciint  Imrd^liip  ni' trcutint;  HoldinrM  n* 
oriniiiials,  who,  il  wum  imhisIi'iI,  urc  olilit,'<'(l  to  iilny  ilicir  oovtrtiKii.  'I  li"  ruin  in  tho 
Honii'  111  r<'«|)(:(!t  to  tliii  niijdicr  us  it  in  with  ribald  lo  iiiiy  ntln  r  njii'iit  who  is  hound  to 
obey  the  proci'HN  or  I'oiniiiiiiid  of  Ins  superior.  A  Hliirill'  n  oli!ii;rd  to  cxi'iiili'  n  man 
who  ix  rt'i;ularly  hc  iitriH'i-d  to  ciipiiid  cxccuiion  in  thiH  si.if-^.  Kut  hIiouUI  Ih'  rxrouto  a 
iTiuniii  Ciinadu  niidi^r  Nuch  hciUimu'c,  hit  would  liu  h  iiiurd>  nr,  A  rtoldii  r,  in  tiinn  ot 
war  1)4  Iwi'i'ii  iiH  mid  Ktii;luiid,  iniuhl  hu  uonip>'l 
N)  riiicr  C'lniiila  and  lii;ht  n^'iiiiiHt  and  kill   Iht 

MtHtuto  ronifirliiui;  him  to  do  ho  on  any  iiuaL;iinili|ii  fxignu'y,  nr  uiiiUt  any  pi'inil'y,  in 
(inic  of  pcarc,  il  ho  Hhoiild  obny  mid  kill  a  man,  hr  would  hi'  j,'iiilty  of  iiiiirdcr.  'I'hu 
mistake  IS  in  .xupposinif  that  n  HovurciKn  cnn  coiupid  a  nun  'o  no  into  u  iiciuhhoriiiii; 
I'oiiiiiry,  wlii'thcr  in  poacn  or  war,  and  do  a  dnd  of  iiifuinv.  'I'liiw  in  cxciiiplilu'd  in  tho 
ouHr  of  spicH.  A  Noviu'ciijn  may  Rolicit  and  hiihd ;  hut  lit'  (.annot  I'uiiiinnnd.  A  liiou* 
HUnd  comniandH  would  not  kuvo  tho  ncrk  of  u  npy  HJiuuld  hr  '  'o  (mu/.'lit  in  tlii>  cnnip  of 
the  cru'iny. — Viittnl,  B.  7,  i-h.  10,  ^  17'J.  It  Ih  a  niistakn  to  snpposo  that  a  Hiddi'ir  in 
hound  lo  do  niiv  act  fonirary  to  the  laws  of  imluri',  at  ilic  hiddiiiL,'  of  lii.s  priiiif, — VHitcl, 
R.  I,  ell.  4,  I)  iU— I,  id.  H.  :«,  eh.  i2,  .S  Ifi.  (Jrof.  U.  :»,  eh.  M.  f)  3,  ii.  2  and  3.  Puf.  I.. 
H,  I'll.  1.  ij  (i,  7.  Hut  if  111!  wtTf,  111'  iiiiiHt  ciidiin'  tiit!  evil  ol  liviiif;  under  ii  sovureii;!! 
who  will  issue  siii'li  i;oiiiinandH,  It  does  not  follow  that  iiL'ij;lihoriii;{  euuiilrics  must  Hub. 
init  to  he  iiile.- 111!  with  iiu'undiarieH  and  UHsassiiis  heeaiise  im<  iI  are  oluioxinus  lo  punish, 
mont  in  their  own  (,'ouiiiry,  for  hv'uxn  desirous  to  go  ihroui;ii  lite  with  bli.odlrss  hands  and 
■I  ipiii't  eoiiHeicneo.  Tho  I'ariniaiiH  ilioui.'lit  theniHelvos  bound  lo  oliry  Charles  IX.  wl'.e;i 
he  ordered  them  lo  inasHacrc  the  IIufriicnoLu.  .Suppose  ihe>  had  ohiymi  u  siniilar  order 
to  iiiassnero  the  Miii^ruciiots  in  Kngiaiid,  would  siieh  un  oril'  r  have  been  deemed  a  \ulid 
pica  on  Olio  of  them  heinj{  Hrraiyncd  in  the  Queen's  !!■< mh  ?  It  ini^ht  have  been 
pinadod  to  an  accusation  of  mui'der  in  France — it  would  luue  been  );ood  us  between 
the  rriminal  and  his  own  sovereinik;  but  hardly,  1  t^u^-peer,  iinvo  been  di^enuul  so  by 
QiKMin  Kli/ubeth's  Juil^'es.  The  simph^  reason  would  have  been  that  Ch:irles  IX,  had 
no  jurisdiction  in  Llngland.  lie  ini^jht  have  thr-jateiieil  liie  Koveriiinent  and  di'clureJ 
war,  if  such  a  meritorious  Kervant,  a  defender  of  ilie  eliureh,  should  not  he  liiierated  by 
the  Judges,  Hut  there  is  no  legal  iiriiieiplo  on  whieli  the  ileen^es  of  foreitifn  courts  or  tho 
li.'fjislator  of  foreign  parliaments  could  have  ousted  the  Judges  of  jurisdiction.  Charles 
might  have  ordered  hia  minister  lo  call  the  mas.'^ncre  a  public  act,  {ilanned  and  cxeouted 
by  himself,  ho  having  authority  to  defend  and  protect  iiis  established  church  ;  and  do- 
manded  a  release  of  the  man.  All  this  would  have  added  no  force  to  the  plea.  Neither 
ICIizabeth  herself,  nor  any  of  the  Tudors,  arbitrary  as  the  government  of  KrrglBiid  wwa, 
would  have  hat}  power  directly  to  take  away  the  jurisdietion  of  the  Judges.  Coke,  with 
a  law-book  in  his  hand,  could  have  baflled  the  sceptre  within  its  own  territorial  jurisdi'*. 
tion.  It  should,  in  justice,  be  remarked,  that  one,  tin-  Governor  of  Bayonne,  and  many 
of  Ilia  companions  in  arms,  refused  to  co-ojierate  in  the  massacre  at  home,  and  were 
never  punished  for  disobedience.  He  replied  to  the  king ;  that  he  hud  sounded  liia  gur- 
rison,  and  found  many  brave  soldiers  among  them,  but  not  a  single  executioner.  Sup. 
pose  a  prince  should  command  a  soldier  to  commit  adultery,  incest,  or  perjury  ;  the  prince 
goes  beyond  liia  constitutional  power ;  and  has  no  more  right  to  expect  obedience  than 
a  corporal  who  should  summarUy  issue  his  warrant  for  the  execution  of  a  soldier.  Vid. 
Burl.  L.  of  Nature.     Vol.  I,  pt.  2,  ch  11,  §  8. 

Every  political  and  civil  power,  has  its  legal  limits.  The  autocrat  may  indeed  take 
the  lives  of  his  own  subjects,  for  disobeying  the  most  arbitrary  commands  ;  but  even  his 
behests  cannot  impart  protection  to  the  merest  slave  as  against  a  foreign  govern- 
ment.  Public  war  itself  has  its  jurisdictional  limits.  Even  that,  in  its  pursuit  after  a 
flying  enemy,  is,  we  have  seen,  arrested  by  the  line  of  a  country  at  peace.  Besides  the 
limit  which  territory  thus  imposes,  there  are  also,  even  in  general  war,  other  jurisdic- 
tional restraints,  as  there  are  in  courts  of  justice.  An  order  emaimtlng  from  one  of  the 
hostile  sovereigns  will  not  justify  to  the  other,  every  kind  of  perfidy.  The  case  of  spies 
has  been  already  mentioned.  An  emissary  sent  into  ;i  camp  with  orders  to  corrupt 
the  adverse  general,  or  bribe  the  soldiery,  would  stand  justified  to  his  immediate  sove- 
reign. Vattel,  B.  3,  ch.  10,  §  180  ;  though  I'venhe  could  not  legally  punish  a  refusal.  In 
respect  to  the  enemy,  such  orders  would  be  an  obvious  excess  of  jurisdiction.  The  enns- 
saries  sent  by  Sir  Henry  Clinton  in  1781,  to  seduce  the  soldiers  of  the  Pennsylvania 
Una,  falling  into  the  hands  of  the  Americans,  were  condemned  and  immediately  exe. 
cuted.    4  Marsh.  Life  of  Wash.  366,  1st  edit.    Entering  the  adverse  camp  to  receive 


1 


I 


Ifl 

tl; 
P< 
b. 


mn: 


Hn 


-^c.. 


mcleod'.s  TKIAL". 


37 


:  franng  iw  power, 

rrutiDi;  Miililii^rM  u% 
I.  '1  li'!  riild  iH  tliu 
a  wfiii  iM  liimnil  to 

to  fXi.'Liiic  n  man 
loulil  he  cxrnuto  a 
<ul(li(  r,  ill  litiic  oi' 

our  (Jovcrniiinnt, 

1  (.'iiii;;ri'HS  puHo  u 
•T  any  (iciml'y,  in 

ol'  ijiurdrr.  'I'lii! 
into  u  iKiim'lilioriiii; 
rxf'ni|ilifi('(l  in  tlio 
nininnil.  A  uiou> 
:lii  in  lliM  cnnip  of 
iO  tliat  a  Holilier  is 
iH  priiu'c. — Vtiitol, 

2  iind  3.  I'ul'.  1.. 
undrr  a  .sovoiniifti 
jiintrit'i  must  Hub. 
iDxious  to  imnish. 
I'odliris  hands  and 
Ciiarlijs  IX.  wfifu 
otl  u  Himilar  ord'r 
iMi  deemed  a  vulid 
mi/uiil  liave  been 
);ood  UM  botweei) 
■on  dccinod  so  by 
t  Clr.irli'8  IX.  had 
ent  and  dt'clan^d 
•Ji  be  libiratod  by 
cign  courts  or  ilio 
^diction.  Charles 
tied  and  cxi^juted 

church  ;  and  do. 

lie  plea.     Neither 

of  KrrKland  was, 

?ee.     Coke,  with 

rritorial  juinsdir. 

yonne,  and  many 

home,  and  were 

sounded  his  gar. 

ecutioner.     Sup. 

rjury  ;  the  prince 

obedience  than 

a  Koldier.     Vid. 

may  indeed  take 
ds  ;  but  even  his 

foreign  ju^ovcrn- 

pursuit  after  a 

CO.     Besides  the 

r,  other  jurisdic. 

from  one  of  the 
'he  case  of  spies 
rdcrs  to  corrupt 
mincdiate  eove- 
sh  a  refusal.  In 
lion.  Thceniis- 
e  Pennsylvania 
nmediately  exe- 
:ainp  to  receivo 


the  tn-achrroun  prnpodiiinii  of  the  jjriiera!  ih  nii  offence  much  more  venial.  It  m  even 
rallird  lawful  in  every  .seiiic  t\n  between  liii'  Miiveieij(ii  niid  emplovee.  Vatiil,  H.  U,  ch. 
(0.  ^  \H\.  Vet  in  the  cane  of  Majiir  Aniiri',  iin  order  to  di>  <o  v^an,  as  belwi'eii  llie  Ihm. 
ti^  (•ountrieH,  held  to  hi>  an  excess  o|  jiiriHdieiiciti. 

Tlie.^r  ciiKeH  ore  inu(  ii  Hiron^'cr  than  any  which  can  he  !>iippoiied  betwrni  nntion**  ui 
pence.  Ill  time  of  war  nuch  |m  rlidy  in  expei'led.  In  tiiiiP  of  peace,  every  citi/en,  whih 
t*Jthin  luH  own  l»rriu>ry,  \\ns  a  double  rii,'lit  to  Hupp'>>-e  himiti  If  Hceiire — ilie  jefjal  mviola 
t.     'V  ot' ihat  lerriliiry,  and  the  Moleinn  pledge  of  the  foreign  HO\erei:rnly. 

lie  di.Hiinciion  that  an  act  valid  ax  to  one  may  lie  void  an  to  another,  is  entirely  fanii 
Uat.  A  man  who  orderH  imolher  to  commit  a  tiespass,  or  approvts  of  a  ir(;«pai*< 
already  committed  for  his  benefit,  iiiiiy  be  bound  to  proteci  bis  servant,  while  ii  wouht 
take  nothinir  troni  the  liabiliiy  of  the  Hcrvimt  to  the  parly  Mi|ured.  As  to  him,  it  could 
merely  have  the  etl'ect  of  addiii),'  another  defeiidiini,  "ho  minht  be  made  iniiiiK 
or  Hcverully  liabli'  with  the  actual  wromj-doer.  A  ciihc  in  point  is  nieaiKuied  by  Valtel, 
K.  3,  eh.  'i,  fj  ir>.  If  one  soverri^'ii  urder  his  recrnitini;  olVicer  to  make  enlistments  in 
the  diimiiiion  of  Hiiother  in  time  of  peace  beiweeii  them,  the  otlicer  ^hall  be  hanged 
notwiihstandiiitj  the  order,  and  war  may  also  be  declared  agaiiiNt  (he  otfeiidin^;  suvereigii. 
Vid.  a  like  insiaiire,  id  II.  1,  ch.  (J,  ^  ICt. 

What  is  till-  utmost  legal  effect  of  a  foreign  sovrreigii,  approving  of  the  crime  hi^ 
.subject  committed  in  a  neighboring  territory  '  'I'he  approval,  as  we  have  alread> 
in  part  .seen,  can  take  noihiiig  from  tlu^  criminality  of  the  principal  oll'endcr.  Whalover 
obligation  hi.s  nation  may  be  under  to  siivc  him  harmless,  this  can  be  absolutely  done 
only  on  the  condition  that  he  confine  himself  within  her  territory.  Valtel,  H.  ij,  ch.  fi, 
/)  ~4.  Then,  by  rcfii.sing  to  make  saiiKfaction,  to  furnish,  or  to  deliver  him  up,  on  de- 
mand from  the  injured  country,  or  by  apjiroving  the  oll'ence,  the  natiiui,  says  Valtel, 
becomes  an  accomplice.     Id.  .sec.  76. 

niaekstone  say.s,  an  nccomplice  or  abettor — [4  Com.  68] — and  Rutherfortli,  still  more 
nearly  to  thi^  language  of  the  Miiglish  law,  an  acecssory  after  the  fact — H.  3,  <'h.  2,  §  li}. 
No  book  supposes  that  hucIi  an  act  merges  the  oriu'inal  olfence,  or  renders  it  ini|iutable 
to  the  nation  alone.  The  only  exception  lies  in  the  case  of  crime  commiiit^d  by  an  am- 
bassadur — not  because  he  is  guiltless,  but  by  reason  ot  the  iiccessiiy  that  he  should  be 
privileged,  and  the  extra-territorial  character  which  the  law  of  nations  has,  therefore, 
attached  to  his  person. 

Hence,  say  the  books,  ho  can  be  proceeded  against  no  otherwise  than  by  a  complaint  to 
his  own  nation,  which  will  make  il.self  a  party  in  his  crime,  if  it  refuses  either  to  punish 
him  by  its  authority  or  deliver  him  up  to  lie  punished  by  the  otfended  nation.  Kuth.  B. 
2,  ch.  9,  ()  20.  Independently  of  this  exceiiiion,  there  fore,  Rutherfortli  insists,  with 
entire  accuracy,  thai,  "  as  far  as  we  concur  i..  what  another  man  does,  so  (iir  the  act 
is  our  own  ;  and  the  effects  of  it  are  chargeable  upon  us  aa  wrll  as  upon  him."  Ruth, 
R  1,  ch.  17,  ^  6. 

A  nation  is  but  moral  entity ;  and  in  the  nature  of  things  can  no  more  wipe  out  the 
oflenca  of  another  by  adopting  it,  than  could  a  natural  person.  And  the  learned  writer 
just  cited,  accordingly  treats  both  cases  as  standing  on  the  same  principle.  15.  2,  ch.  9, 
§12.  "  Nothing  is- more  usual,"  says  I'ufl'endorf,  "  than,  lhat  every  particular  acc.om. 
plice  in  a  crime  be  made  to  auficr  all  that  the  law  inflicts."  B.  3,  ch.  1,  §  5.  Vattel 
says  of  such  a  case,  B.  2,  ch.  6,  §  75 — If  the  oflcnded  state  have  the  oii'ender  in  her 
power  she  may  without  scruple  punish  him. 

Again,  if  he  have  escaped  and  returned  to  his  own  country,  she  may  apply  for  justice 
to  his  sovereign,  who  ought,  under  some  cirrumstances,  to  deliver  liim  up — id.  §  76. 
Again,  he  says,  she  may  take  satisfaction  for  the  offence  herself  when  she  meets  with 
the  delinquent  iii  her  own  territories.  B.  4,  ch.  4,  §  52.  I  before  cited  two  instances  in 
which  positives  orders  by  his  sovereign  to  commit  a  crime  are  distinctly  held  to  render 
both  nation  and  its  subject  obnoxious  to  punishment.  Vattel,  B.  3,  ch.  2,  §  15. — id.  B. 
1,  ch.  6,  §  75 ;  vid.  also  1  Burl.  pt.  2,  ch.  11,  §  10. 

Was  it  ever  suggested  by  any  one  before  the  case  of  M cLeod  arose,  that  the  approval  by 
a  monarch  should  oust  civil  jurisdiction,  or  even  so  much  as  mitigate  the  criminal  ofl'ence  ' 
— nay,  that  the  coalition  of  great  power  with  great  crime  does  not  render  it  ntore  dan- 
gerous, and  therefore  more  worthy  of  punishment  under  every  law  by  which  the  perpe- 
trators can  be  reached  ? 

Could  opprobation  and  avowal  have  saved  the  unhappy  Mary  Queen  of  Scots,  where 
would  have  been  the  civil  jurisdi  'tion  of  Elizabeth's  commissioneus  ?  The  very  charge 
of  an  attempt  by  Mary  to  dethron-.-  and  as.sas8inate  the  British  Queen  implied  the  appro, 
bation  and  active  concurrence  of  one  crowned  head  at  least.    Could  the  criniinai  have 


i 


*,  I 


;i 


■f 


38 


GOULD  S  REPORTER. 


'!l 


been  saved  by  "".y  such  considerations,  the  cnterprize  mirjht  truly  hnvo  been  avowed  as 
one  which  had  t)i'i>n  planned  by  the  leatlini,'  government  ot'  Caihohc  fc]ur()[)e. 

The  Pope,  then,  havin'r  at  h;iwt  some  pretensions  to  jurisuici.on  even  in  England,  had 
openly  approved  it  under  his  seal.  The  Spanish  ambassador  at  Paris  was  a  parly  relied 
upon  to  ibjlow  up  the  event  with  an  invasion.  Would  James,  the  son  of  the  accused, 
have  hesitated  to  join  in  the  avowal  could  he  have  thus  been  insirr'nental  in  saving  the 
life  of  his  mother  ?  Yet  the  principle  was  not  thought  of  in  the  wliole  course  of  that 
(■xtraordinary  ntlair. 

Mary  opeidy  avowed  her  general  treason  as  a  measure  of  defence  and  protection  to 
herself,  though  she  denied  all  participation  in  the  plot  to  assassinate  Elizabeth.  Yet  the 
only  ground  taken  was,  the  technical  one  (not  the  less  valid  because  technical)  that  the 
accused  was  personally  privileged  as  a  monarch,  and  could  not  be  tried  under  the 
English  law,  which  required  a  jury  composed  of  her  peers.  It  was  added  that  she  came 
into  the  kingdom  under  the  law  of  nations,  and  had  enjoyed  no  protection  from  the 
English  law,  having  been  continually  kept  as  a  prisoner.  Vid.  the  case  stated  and  ex- 
amined  in  »ho  right  of  international  law,  2  Ward's  L.  of  Nations,  564. 

No  one  pretended  that  her  approbation,  or  that  of  a  thousand  nionarchs,  could  have 
reflected  any  degree  of  exemption  from  judicial  cognizance,  upon  the  alien  servants  in 
her  employment.  Such  a  priniiiple  would  have  fdled  England  with  an  army,  in  time  of 
peace,  disguised  as  .Jesuits ;  for  the  bigotry  of  nionarchs  would,  at  that  day,  have  led 
them  to  avow  any  system  of  pernicious  espionage  which  could  have  served  ttie  purposes 
of  the  Pope  by  executing  his  IJuU  of  excommunication  against  Elizabeth. 

Canada  again  being  ditjturbed,  and  our  citizens  aiding  the  revolt  by  boats,  provisions, 
or  money,  the  purposes  of  England  would  certainly  require  such  conduct  to  be  put  down 
at  all  events.  Adopt  the  principle  that  she  may,  I)y  avowal,  protect  her  soldiery  who 
steal  upon  our  citizens  at  nii('"!ght,  from  all  punishment  at  the  common  law  ;  and  before' 
you  get  <  yen  a  remonstrance  from  Washington,  your  whole  frontier  might  be  made  a 
tabula  rnza.  No.  Before  England  can  lawfully  send  a  single  soldier  for  hostile  pur- 
poses, she  must  assume  the  responsibility  of  public  war. 

Her  own  interests  demanding  the  application  of  the  rule,  she  perfectly  understands 
its  force.  What  regard  have  her  courts  ever  paid  to  the  voice  of  public  authority  on 
this  side  the  line,  when  it  sought  to  cover  even  territory  to  which  the  United  States  de- 
nies her  title  ?  The  mere  act  of  taking  a  census  in  the  disputed  territory  under  the 
authority  of  Maine,  was  severely  punished  by  the  English  municipal  magistrates.  Had 
a  posse  of  constables  or  a  company  of  militia  bearing  muskets  been  sent  to  aid  the  cen- 
sor,  in  what  book,  or  in  what  usage  could  she  have  found  that  'his  would  divest  her 
courts  of  jurisdiction,  and  put  the  cabinet  of  St.  James  to  a  remedy  by  remonstrance  or 
war  ?  Had  the  posse  been  arrested  by  her  sheriff,  and  in  mere  defence  had  killed  him,  and 
this  nation  had,  after  some  two  or  three  years,  avowed  the  act,  would  she  have  thought  of 
conceding  that  in  the  mean  time,  all  power  of  her  courts  over  the  homicides  had  been 
suspended,  or  finally  withdrawn  ? 

But  it  is  said  of  the  case  at  the  bar,  here  is  more  than  a  mere  approval  by  the  adverse 
government ;  that  an  explanation  has  been  demanded  by  the  Sec-etary  of  State,  and 
the  British  Ambassador  has  insisted  on  McLcod's  release,  and  qounsel  claim  for  the 
joint  diplomacy  of  the  United  Slates  and  England  some  such  clfect  upon  the  power  of 
this  court  as  a  certiorari  from  us  would  have  upon  the  county  court  of  general  sessions. 
It  was  spoken  of  as  incompatible  with  a  judicial  proceeding  against  McLeod  in  this 
State ;  as  a  suit  actually  pending  between  the  two  nations,  wherein  the  action  of  the 
general  government  comes  in  collision  wiih  and  supersedes  our  own. 

To  such  an  objection  thc' answer  is  quite  obvious.  Diplomacy  is  not  a  judicial,  but 
executive  function ;  and  the  objection  would  come  with  the  same  force  whether  it  were 
urged  against  proceeding  in  a  court  of  this  State  or  the  United  States.  Whether  an  actual 
exertion  of  the  treaty.making  power,  by  the  President  and  Senate,  or  any  power,  dele- 
gated to  Congress  by  the  federal  constitution,  could  work  the  consequence  contended 
for,  we  are  not  called  upon  to  inquire  ;  whether  the  Executive  of  the  nation — supposing 
the  case  to  belong  to  the  national  court — or  tlie  Executive  of  this  State,  might  not  par- 
don  the  prisoner,  or  direct  a  nolle  prosequi  to  be  entered,  are  considerations  with  which 
we  have  nothing  to  do. 

The  Executive  power  is  a  constitutional  department  in  this,  as  in  every  well  .organized 
government,  entirely  distinct  from  the  judicial.  And  that  would  be  so,  were  the  na- 
tional government  blotted  out,  and  the  State  of  New  York  left  to  take  its  place  as  an 
independent  nation. 

Not  only  are  our  constitutions  entirely  explicit  in  leaving  the  trial  of  crimes  exclusively 
in  the  hands  of  the  judiciary,  but  neither  in  the  nature  of  things,  nor  in  sound  policy,  can 


"111 


;^ 


MCLEOD  S  TRIAL. 


39 


hnvo  been  avowed  as 
ic  Europi'. 

'  vcn  in  England,  had 
rLs  was  a  parly  relied 
3  son  of  the  accused, 
■'nental  in  saving  the 
whole  course  of  that 

ice  and  protection  to 
Elizabeth.     Yet  the 

se  technical)  that  the 
be  tried  under  the 

added  that  she  came 
protection  from  the 

c  case  stated  and  ex- 

iionarchs,  could  have 
the  alien  servants  in 
an  army,  in  time  of 
.  that  day,  have  led 
I  served  the  purposes 
;abeth. 

by  boats,  provisions, 
iduct  to  be  put  down 
ict  her  soldiery  who 
ion  law  ;  and  before ' 
ier  might  be  made  a 
Idler  for  hostile  pur- 

lerfectly  understands 
r  public  authority  on 
le  United  Slates  de. 

territory  under  the 
il  magistrates.    Had 

sent  to  aid  the  cen. 
is  would  divest  her 

by  remonstrance  or 
!  had  killed  him,  and 
she  have  thought  of 
lioniicides  had  been 

oval  by  the  adverse 
••etary  of  State,  and 
ounsel  claim  for  the 
;  upon  the  power  of 
of  general  sessions, 
list  McLeod  in  this 
the  action  of  the 

s  not  a  judicial,  but 
rce  whether  it  were 
Whether  an  actual 
or  any  power,  dele- 
lequence  contended 
!  nation — supposing 
tate,  might  not  par- 
;rations  with  which 

very  well  organized 
le  so,  were  the  na. 
take  its  place  as  an 

f  crimes  exclusively 
a  sound  policy,  can 


I 


:•£ 


It  be  confided  to  the  executive  power.  That  can  n'.ver  act  upon  the  individual  offender, 
but  only  by  requisition  on  ilu^  furei;,Mi  governniiiit ;  and  in  the  instance  before  uh,  it  has 
no  pu.ver  even  to  in<iuin:  whether  it  be  true  iliut  .McLeod  has  personally  violated  the 
criiniuiil  laws  i)f  this  -Jiate.  It  has  charge  of  the  ijuestion  in  its  national  aspect  only.  It 
must  rely  on  aceideniiil  iiiforniaiion,  and  may  pliioe  the  whole  question  on  diplomatic 
considerations,  'i'liese  may  bo  ent.rely  wide  either  of  the  fact  or  the  law,  as  it  stands 
between  this  state  and  the  accused.  The  whole  may  tmii  on  questions  of  national  honor, 
national  strength,  the  comparative  value  of  national  intercourse,  or  even  a  point  of 
etiquelte. 

Upon  the  principle  contended  for,  every  accusation  which  has  been  drawn  in  question 
by  the  executive  power  of  two  nations,  can  be  adjusted  l)y  negotiation  or  war  oidy.  The 
individual  accused  must  go  I'ree,  no  matter  to  what  extent  his  case  may  have  been  mis. 
api)reliendcd  by  either  ;jower.  No  matter  how  erhninal  he  may  have  been,  if  his  coun- 
try,  though  acting  (jn  false  rejircsentations  of  the  cause,  may  have  been  led  to  approve  of 
the  tiansaciioii  and  negotiate  concerning  it,  the  deiiinnds  of  criminal  justice  are  at  an  end. 

Under  circumstances  the  executive  power  miiiht,  in  the  exorcise  of  its  disinetion,  be 
bound  to  disregard  a  venal  olfence  as  no  iueach  v)f  treaty  which  the  judiciiiry  would 
be  obliged  to  punish  as  a  breach  of  international  law.  Suppose  some  of  our  citizens  to 
attack  the  Uritish  power  in  (."aiiada,  and  the  Queen's  soldiers  to  follow  the  heat  of  re- 
pelling  them  by  crossing  the  line  and  arresting  the  ofl'eiiders,  doing  no  damage  to  any  one 
not  actually  engaged  in  the  conflict.  The  line  being  absulutely  impassable  in  law  for 
hostile  purposes,  the  arrest  on  this  side  would  "bo  a  technical  false  imprisonment  for 
which  we  should  be  bound  to  convict  the  soldiers,  if  arrested  here;  while  the  executive 
power  might  overlook  the  intrusion  as  an  accidental  and  innocent  violation  of  national 
territory.    Vaitel,  B.  4,  eh.  4,  §  43. 

I  lorbear  now  to  notice  particularly  some  of  the  legal  passages  and  cases  which  were 
referred  to  by  the  prisoner's  counsel  in  the  course  of  his  argument ;  not  for  the  reason 
that  I  have  omitted  to  examine  them,  but  because  I  con.^ider  them  inapplicable  under 
the  views  1  have  felt  it  my  duty  to  take  of  the  i)risoner's  case.  They  were  principally  of 
three  classes;  tirsi,  passages  from  books  on  the  law  of  nations  as  to  what  is  public  war, 
and  the  protection  due  to  soldiers  while  engaged  in  the  prosecution  of  such  war  by  their 
sovereign  against  a  public  enemy;  secondly,  the  general  obligations  of  obedience  as  be. 
tweeii  him  and  his  sovereign,  whether  in  peace  or  war ;  thirdly,  cases  from  our  own 
books  relative  to  the  conflicting  powers  of  tlie  general  and  state  governments.  The  case 
of  Elphinstonc  v.  Bedrcechund,  1  Knapp's  Rep.  317,  related  to  the  breach  of  an  actual 
military  capitulation,  entered  into  during  an  acknowlctlged  public  war  between  England 
undone  of  the  petty  sovereignties  of  India. 

In  considering  the  question  of  jurisdiction,  I  have  also  forborne  to  notice  that  branch 
of  the  affidavits  which  sets  up  an  alibi.  McLeod's  counsel  very  properly  omitted  to  insist 
on  it  as  at  all  strengthening  the  claim  of  privilege.  Indeed,  he  said  the  clause  was  put 
in  merely  by  way  of  potesiando.  If  it  was  inserted  with  the  intention  of  having  it  taken 
as  true  upon  the  motion,  that  alone  would  destroy  all  pretence  for  any  objection  to  our 
jurisdiction.  His  surrender  was  demanded  upon  the  hypothesis  that  he  was  acting  under 
public  authority.  If  in  truth  he  was  not,  or  was  not  acting  at  all,  he  enjoys,  according 
to  his  own  concession,  no  greater  privilege  than  any  other  man.  The  essential  circum. 
stance  relied  on,  as  going  to  the  (luestioii  of  jurisdiction,  turns  out  to  be  fictitious;  and 
the  argument  must  be,  that  we  have  no  power  to  try  the  question  of  alibi.  On  that,  and 
every  other  lawful  ground  of  defence,  he  will  be  heard  by  counsel  on  his  trial. 

It  is  [iroper  to  add,  that  if  the  matters  urged  in  argument  couid  have  any  legal  effect 
in  favor  of  the  prisoner,  I  should  feel  entirely  clear  that  they  would  be  of  a  nature  avail. 
able  before  the  jury  only.  And  that  according  to  the  settled  rules  of  proceeding  on  ha. 
beas  corpus,  we  should  have  no  power  ever  to  consider  them  as  a  ground  for  discharg- 
ing  the  prisoner.  I  took  occasion  to  show  in  the  outset  that  in  no  view  can  the  evidence 
for  the  prosecution  of  the  defence  be  here  examined  independently  of  the  question  of 
jurisdiction,  and  I  entertain  no  doubt  that  whenever  an  indictment  for  a  murder  com- 
mitted within  our  territory  is  found,  and  the  accused  is  arrested,  these  circumstances 
give  complete  jurisdiction. 

I  know  it  is  said  by  the  English  books,  that  even  in  a  case  of  mixed  war,  viz.  a  hostile 
invasion  of  England  by  private  persons,  the  common  law  courts  have  not  jurisdiction. 
It  was  so  held  in  Perkin  Warbeck's  case.  He  was  punished  with  death  by  sentence  of 
the  constable  and  marshal,  who,  it  is  said  in  Calvin's  case,  7  Co.  Rep.  11-12,  had  exclu. 
sive  jurisdiction.  Dy.  145,  S.  P.  1  Curw.  Hawk.  ch.  2,  §  1,  p.  9.  But  that  rests  on  a 
distribution  of  judicial  power  entirely  unknown  to  this  state  o.  nation.  The  court  of 
the  constable  and  marshal  seems  to  have  had  an  ancient  right  not  very  well  defined  by 


t'  1 


i 


40 


GOULD'S    REPORTER. 


■  M 


^ 


■lis 


the  common  law,  of  trying  all  military  offencea,  as  appears  by  the  Stat.  R.  2,  ch.  2,  (vid. 
2  Pick.  St.  at  largr,  p.  310,)  which  was  paswed  to  settle  conflicting  claims  of  jurisdiction 
between  that  and  the  ordinary  courts,  vid.  also  3  Inst.  48.  The  whole  is  obviously  inap- 
plicable  to  this  country,  and  i.s  pretty  much  obsolete  in  Kngland.  It  never  can  iiave  been 
held  i\\  England  or  any  country,  thiit  where  a  common  law  court  is  proceeding  on  indict- 
ment for  a  common  law  ofTcnce  against  any  one  arrested  and  brought  before  it,  a  mere 
suggestion  by  aftiduvit,  that  the  oHence  imputed  pertains  to  deeds  of  arms,  either  in  a 
public  or  mixed  war,  shall  take  away  power  to  try,  whether  the  prisoner  be  guilty  or  not 
of  the  charge  contained  in  the  indictment. 

All  homicide  is  presumed  to  be  malicious,  and,  therefore,  murder,  until  the  contrary 
appear  upon  evidence.  "  The  matter  of  fact,"  says  Foster,  "  viz.  whether  the  facta 
alleged,  by  way  of  justification,  excuse,  or  alleviation,  are  true,  is  the  proper  and  only 
province  of  the  jury."  Lawful  defence  by  an  individual  (still  recognized,  it  seems,  by 
the  law  of  nature  imder  the  name  of  private  war,  Grot.  B.  1,  ch.  3,  sec.  2,)  is  one  in- 
stance.  Foster,  273.  That  he  acted  in  right  of  a  nation,  or  under  pui)lic  authority,  is  no 
more  than  matter  of  justification.  It  is  like  the  case  mentioned  in  Foster,  265,  the  pub. 
lie  execution  of  malefactors ;  and  the  jury  must  judge  whether  the  authority  may  not 
have  been  exceeded.  But  more,  when  either  public  or  mixed  war  is  alleged  in  mitiga- 
tion,  either  allegation  may  be  fictitious ;  and  it  shall  be  put  to  the  jury,  on  the  proper 
evidence,  whether  it  existed  or  not.  The  reason  is  plain,  says  Lord  Hale  ;  for  the  war 
may  be  begun  by  the  foreign  prince  only,  where  it  is  public ;  and  he  supposes  it  still 
plainer  where  the  war  is  between  the  king  and  an  invading  alien,  being  the  subject  of  a 
a  nation  with  whom  the  king  is  at  iieace.  1  Hal.  p.  6,  163.  The  same  writer  puts  the 
case  of  plunder  or  robbery  by  an  enemy,  tempus  belli,  which  would  not.  in  general  be 
burglary.  Yet  he  admits  it  might  be  otherwise  if  the  act  were  not  done  in  the  regular 
prosecution  of  the  war.  Id.  565. 

Suppose  a  prisoner  of  war  to  escape,  and  that  on  his  way  home,  and  before  he  crosses 

the  line,  he  should  set  fire  to  a  farm-house  in  the  night  and  kill  the  inmates  ;  is  there  a 

doubt  that  he  might  properly  be  convicted  either  of  arson  or  murder  ?     When  a  grand 

jury  have  charged  that  a  man  has  committed  murder  in  this  state,  I  can  imagine  no  case, 

whether  the  charge  relate  to  the  time  of  open  public  war  or  peace,  in  which  he  can  claim 

exemption  from  trial.  If'he  show  that  he  was  in  truth  acting  as  a  soldier  in  time  of  public 

war,  the  jury  will  acquit  him.     The  judge  will  direct  them  to  obey  the  law  of  nations, 

which  is  undoubtedly  a  part  of  the  common  law.     So,  if  the  accused  were  acting  in  de- 

-  fence  against  an  individual  invader  of  his  country.    But  above  all  things,  it  is  important 

f  in  the  latter  case  for  the  jury  to  inquire  whether  his  allegation  of  defence  be  not  false  or 

•  colorable. 

They  cannot  allow  as  an  act  of  defence  the  wilful  pursuing  even  such  an  enemy, 
though  dictated  by  sovereign  authority,  into  a  country  at  peace  with  the  sovereign  of  the 
accused,  seeking  out  that  enemy  and  taking  his  life.  Such  a  deed  can  be  nothing  but 
an  act  of  vengeance.  It  can  be  nothing  but  a  violation  of  territory,  a  viola  ion  of  the 
municipal  law,  the  faith  of  treaties,  and  the  law  of  nations.  The  governnient  of  the  ac- 
cused  may  approve,  diplomacy  may  gloze,  but  a  jury  can  only  inquire  whether  he  was  a 
party  to  the  deed,  or  to  any  act  of  illegal  violence  which  he  knew  would  i)robably  en- 
danger human  life.  If  satisfied  that  he  was  not,  as  I  sincerely  hope  they  may  be,  upon 
the  evidence  in  the  case  before  us,  they  will  then  have  the  pleasant  duty  to  perform  of 
pronouncing  him  not  guilty.  But  whatever  may  be  their  conclusions,  we  feel  the  utmost 
confidence  that  the  prisoner,  though  a  foreigner,  will  have  no  just  cause  to  complain  that 
he  has  suRered  wrong  at  the  hands  of  an  American  jury. 

At  our  hands  the  prisoner  had  a  right  to  require  an  answer  upon  the  facts  presented  by 
his  papers,  whether  in  law  he  can  properly  be  holden  to  a  trial.  We  have  had  no  choice 
but  to  examine  and  pronounce  upon  the  legal  character  of  those  facts  in  order  to  satisfy 
ourselves  of  the  benring  they  might  have  on  the  novel  and  important  question  submitted. 
That  examination  has  led  to  the  conclusion  that  we  have  no  power  to  discharge  the 
prisoner. 

He  must,  therefore,  be  remanded,  to  take  his  trial  in  the  ordinary  forms  of  law. 

Before  the  learned  gentleman  got  through  the  whole — 
,     Judge  GuiuLEY  reminded  him  that  the  hour  of  one  o'clock  had  arrived, 
which  time  the  Court  had  fixed  to  adjourn  for  dinner. 

Officers  were  then  sworn  to  attend  the  jurors,  and  other  officers  to  take 
charge  of  the  prisoner,  and  the  Judge  charged  the  jury  (for  whom  accom- 
modation waa  provided  at  the  Temperance  House)  not  to  converse  on  the 


4i 


3 


i 


M 


-^? 


MCLEOD  S   TRIAL. 


41 


It.  R.  2,  ch.  2,  (vid. 
lims  ofjiirisdictiou 
e  is  obviously  inap. 
ever  can  have  been 
■ocecding  on  indict. 
[it  before  it,  a  mere 
jf  arms,  either  in  a 
ncr  be  guilty  or  not 

until  the  contrary 

whether  the  facte 
le  proper  and  only 
nizcd,  it  seems,  by 

sec.  2,)  is  one  in. 
ilic  authority,  is  no 
)ster,  26.5,  the  pub. 
authority  may  not 

alleged  in  mitiga. 
ury,  on  the  proper 
Hale  ;  for  the  war 
le  supposes  it  still 
ing  the  subject  of  a 
ime  writer  puts  the 
not  in  general  be 
done  in  the  regular 

d  before  he  crosses 
imates  ;  is  there  a 
■?  When  a  grand 
n  imagine  no  case, 
vhich  he  can  claim 
er  in  time  of  public 
she  law  of  nations, 
were  acting  in  de. 
ngs,  it  is  important 
ice  be  not  false  or 

1  such  an  enemy, 
le  sovereign  of  the 
;an  be  nothing  but 
a  viola  ion  of  the 
ernnient  of  the  ac- 
whether  he  was  a 
'ould  jirobably  en. 
Ihey  may  be,  upon 
duty  to  perform  of 
we  feel  the  utmost 
e  to  complain  that 

facts  presented  by 
ave  had  no  choice 
in  order  to  satisfy 
ueslion  submitted, 
to  discharge  the 

•rma  of  law. 

;k  had  arrived, 

officers  to  take 

whom  accom- 

onverse  on  the 


subject  of  this  trial,  nor  to  allow  other  persons  to  approach  and  speak 
to  them  until  they  had  rendered  their  vi^rdict.  lie  also  charged  them 
to  ubytaiti  from  .spirituous  liquors,  except  us  a  medicine,  as  they  might 
thereby  vitiate  their  verdict.  In  a  civil  suit,  a  case  had  occurred  in  which 
the  verdict  was  set  aside  for  that  reason.  He  then  directed  that  the 
printed  arrangement  for  leaving  the  court  should  be  reversed  ;  and  accord- 
ingly  the  jurors  left  first,  in  charge  of  officers ;  then  the  prisoner,  accom- 
panied  by  the  sheriff*,  and  Mr.  Clark  Robinson,  the  marshal  of  the  district ; 
next  the  bar  and  the  reporters,  followed  by  the  court  and  the  audience. 
The  prisoner  proceeded  through  the  public  street,  with  his  attendants,  to 
Bagg's  hotel,  where  dinner  was  provided  for  him,  williout  exciting  any 
curiosity,  except  of  some  few  small  boys.  There  were  very  few  stran- 
gers present,  and  the  citizens  of  Utica  apparently  feel  no  interest  in  the  case. 

At  two  o'clock  the  court  was  again  opened,  and  the  same  quiet  and 
order  prevailed,  the  court  being  but  partially  filled.  The  names  of  the 
jurors  were  called  over,  and 

The  Attorney-General  resumed  and  concluded  the  reading  of  Judge 
Cowcn's  opinion  and  decision,  as  presented  in  the  foregoing  pages,  and 
added  as  follows: 

In  the  first  place,  the  Supreme  Court  of  the  State  of  New  York  have 
decided,  that  this  was  not  an  act  of  war — that  it  was  not  to  be  governed 
by  the  laws  of  war,  but  of  peace  ;  not  by  the  laws  of  Canada  nor  of  the 
United  States ;  but  by  our  own  municipal  laws.  There  is,  therefore,  no 
consideration  in  the  case,  which  would  not  be  brought  before  you  in 
any  case,  where  an  attack  has  been  made  and  one  of  our  citizens  mur- 
dered. The  law  is  precisely  the  same  here  as  in  our  own  municipal 
laws  under  which  we  all  live  and  act  and  seek  protection.  There 
is  no  justification,  or  excuse,  or  palliation.  Another  point  is,  to  excuse 
the  act  on  account  of  its  being  done  in  a  pressing  and  dangerous  assault. 
I  will  add  one  suggestion ;  it  is  this,  that  the  offence  which  has  been  com- 
mitted,  is  an  offence  against  our  laws  alone,  and  no  other  laws.  Blood 
has  been  shed  upon  our  soil,  and  we,  the  people  of  the  State  of  NewYork, 
are  held  responsible,  and  no  other  people.  If  the  prisoner  is  not  pun- 
ished  here,  he  will  be  punished  nowhere.  Not  in  Canada.  Not  under 
the  laws  of  the  United  States.  He  has  violated  no  law  of  the  United 
States.  It  is  here  and  here  alone  that  the  avenger  of  blood  calls  upon 
you  to  answer  as  to  the  guilt  or  innocence  of  the  prisoner.  I  will  make 
another  suggestion.  Throughout,  the  court  proceeded  to  take  facts  which 
he  stales  to  be  true — they  presume  that  Durfee  was  one  of  the  insurgents 
in  arms  against  Canada  upon  Navy  Island.  They  have  placed  him  in  the 
same  position  as  if  he  were  one  of  the  insurgents,  or  as  they  would  have 
placed  Van  Rensselaer  himself  had  he  been  killed  instead  of  Durfee. 
This  you  will  perceive  is  a  fallacy.  And  that  the  unhappy  man  who  met 
his  death  there  was  as  innocent  as  you  are.  He  was  there  on  his  lawful 
business  as  you  might  have  been,  and  had  any  other  citizen  been  killed  in 
that  situation,  the  facts  would  have  been  the  same  as  in  the  case  of  the  un- 
fortunate Durfee.  The  only  question  which  you  have  now  to  decide  is 
the  simple  fact,  "  Is  the  prisoner  one  of  those  who  assailed  the  Caroline, 
and  killed  Durfee  ?"  To  that  single  fact  are  you  limited.  The  ques- 
tions  of  law  have  been  disposed  of  by  the  Supreme  Court,  by  which  decis- 
ion you  and  this  court  and  all  are  bound.  You  must  bear  constantly  in 
mind  that  the  testimony  which  bears  to  any  other  point  except  whether  he 


'i-i, 


h 


(■' 


:;1  ■! 


)(! 


Hi 
^5 


i.  n 


till 


\\ 


:  w  i 


43 


Gould's  reporter. 


was  there  or  not,  is  to  be  thrown  from  your  mind,  as  calculated  to  perplex 
and  embarrass.  The  question  then  is,  was  the  prisoner  in  that  expedition  ? 
Upon  tiiis  point  we  shall  examine  numerous  witnesses ;  some  of  them  will 
sliow  that  upon  various  occasions  and  in  presence  of  those  who  were  in  it, 
the  j)risoner  declared  that  he  was  there.  We  shall  show  that  previous  to 
this  expedition  the  prisoner  was  one  of  the  most  bus)  and  active  in  get- 
ting up  this  expedition — that  a  kw  days  previous  he  went  to  Butfulo  for 
the  purpose  of  seeing  the  boat,  and  of  ascertaining  if  it  were  coming  to 
Schiosser.  He  went  round  the  Island  in  various  ways,  and  appeared  to 
take  a  deep  and  active  interest  in  the  affair,  and  we  shall  show  you  that 
he  was  engaged  in  enlisting  persons  for  the  expedition.  It  will  also  appear 
before  you  that  on  several  occasions  he  exhibited  a  pistol  and  a  sword 
witli  blood  upon  them,  and  repeatedly  pointed  to  the  blood,  and  said  it  was 
the  blood  of  a  d — d  Yankee.  Several  witnesses  will  prove  before  you 
that  they  saw  him  enter  the  boat  to  go  on  that  expedition — again,  others 
saw  him  leave  the  boat  on  its  return.  Such,  gentlemen,  is  the  nature  of 
the  evidence  which  will  be  adduced  on  the  part  of  the  prosecution  to  show 
what  part  the  prisoner  had  in  this  expedition — the  destruction  of  the  Caro- 
line, in  which  Durfee  met  his  death.  Little  now  remains  for  me  but  to 
lay  down  some  principles  of  law,  that  you  may  judge  of  the  weight  and 
application  of  evidence,  which  shall  be  given  in  before  you.  Having  stript 
the  case  of  all  extraneous  law  and  all  foreign  law,  we  are  to  try  the  case 
according  to  our  law  as  it  is  administered  in  England,  the  government  of 
which  the  prisoner  was  a  subject.  The  first  thing  is,  that  every  murder 
is  presumed  to  be  malicious.  It  is  for  the  accused  to  show,  that  there 
was  cause  of  excuse.  When  one  man  meets  his  death  by  the  hand  of 
another,  it  is  presumed  to  be  a  murderous  act,  unless  the  other  can  show 
that  it  was  done  by  authority  of  law,  as  in  the  case  of  a  sheriff,  or  in 
necessary  self-defence,  as  when  assailed  by  a  robber ;  or  some  excuse  or 
justification  of  this  kind,  to  excuse  the  person  whose  hands  are  marked 
with  the  blood  of  the  person  whom  he  has  slain.  The  second  proposition, 
that  malice  is  necessary  to  constitute  murder,  is  confined  to  an  intention  to 
take  the  life  of  an  individual,  the  malice  prepense  essential  to  constitute 
murder,  consists  in  a  foul  design  under  the  dictates  of  a  depraved,  wicked, 
and  malicious  heart.  Roscoe's  Criminal  Evidence,  651 ;  4  Blackstone,  199  ; 
3  Revised  Statutes,  546.  It  is  not  necessary  for  you  to  say,  that  the  hands 
of  the  prisoner  were  the  hands  that  slew  Durfee.  The  third  proposition 
is :  If  an  action  be  unlawful,  and  its  deliberate  intention  is  mischief  indis- 
criminately, and  deatK  ensues  besides  the  original  intent,  it  will  be  murder — 
no  matter  whether  they  intended  to  kill  when  they  left  Canada,  if  they 
were  bent  on  an  act  of  villany,  they  must  take  the  consequences ;  2 
Revised  Statutes,  546.  The  fourth  proposition  is,  that,  in  order  to  con- 
vict  the  prisoner,  it  is  not  necessary  to  prove  that  the  fatal  wound  was 
given  by  his  own  hand.  Roscoe,  640  ;  if  he  was  present,  aiding  and  abet- 
ting, he  is  a  principal  in  *,he  felony  ;  B.  C.  C.  24.  If  several  persons  set 
out  together,  or  in  small  parties,  as  several  boats  starting  from  Canada  upon 
one  common  design,  be  it  for  the  purpose  of  murder  or  for  other  felony — 
for  the  purpose  of  murdering  Durfee  or  destroying  the  Caroline,  or  any 
other  object,  some  being  employed  to  watch,  some  to  prevent  the  escape 
of  those  who  are  more  immediately  engaged — they  are  all,  in  the  eye  of 
the  law,  present  at  the  act  committed.  Foster,  350 ;  1  Hall  P.  C.  466. 
These  are  the  principles  admitted ;  they  are  the  known  rules  of  law,  and 


m 
^ 


N\ 


^M^ 


^ 


MCLEOD  S  TRIAL. 


43 


:ulated  to  perplex 
1  that  expedition  ? 
lonie  of  tiicm  will 
ic  who  were  in  it, 
V  that  previous  to 
nd  active  in  get- 
ent  to  Buflalo  for 
were  coming  to 
and  appeared  to 
all  show  you  that 
t  will  also  appear 
itol  and  a  sword 
d,  and  said  it  was 
)rove  before  you 
ti — again,  others 
is  the  nature  of 
asecution  to  show 
nion  of  the  Caro. 
ins  for  me  but  to 
»f  the  weight  and 
1.     Having  stript 
•e  to  try  the  case 
10  government  of 
lat  every  murder 
show,  that  there 
h  by  the  hand  of 
3  other  can  show 
f  a  sheriff,  or  in 
f  some  excuse  or 
ands  are  marked 
cond  proposition, 
to  an  intention  to 
tial  to  constitute 
lepraved,  wicked, 
Blackstone,  199 ; 
ly, that  the  hands 
third  proposition 
s  mischief  indis- 
will  be  murder — 
Canada,  if  they 
onsequences ;    2 
n  order  to  con- 
atal  wound  was 
aiding  and  abet- 
'eral  persons  set 
om  Canada  upon 
other  felony — 
Caroline,  or  any 
vent  the  escape 
1,  in  the  eye  of 
Hall  P.  C.  466. 
lies  of  law,  and 


it  is  only  for  you  to  apply  to  these  principles  the  evidence  which  siiall  ho 
ad'hiced.  And  if  tlie  evidence  brings  the  prisoner  witliin  tin;  province 
iii"  the  law,  there  is  no  alternative  but  to  pronounce  the  verdict  which  your 
oaths  will  require.  Before  you  will  be  called  upon  to  find  a  verdict  of 
guilty,  the  following  facts  must  be  established.  First,  that  Durfee  was  killed ; 
secondly,  that  he  was  killed  in  the  county  of  Niagara  ;  thirdly,  that  he  was 
killed  by  a  pistol  or  musket  shot,  or  a  weapon  of  a  similar  character; 
fourthly,  that  he  was  killed  by  the  prisoner  ;  or  lifihly,  that  he  was  killed  by 
the  prisoner  or  others  connected  with  him,  with  whom  he  was  acting, 
counselling,  aiding  and  abi.'tting.  If  this  act  was  done  by  him  or  by  the 
company,  your  verdict  of  guilty  must  follow. 

Gentlemen,  I  have  endeavored  to  place  before  you,  in  the  most  simple 
manner,  the  leading  features  of  this  case,  so  far  as  they  may  be  usefid  to 
you,  and  no  further,  in  understanding  and  applying  the  evidence  as  pre- 
sented to  you.  The  interests  which  are  committed  to  you  are  of  inex- 
pressible importance  to  the  prisoner,  whose  life  is  in  your  hanc'-i ;  to  the 
people — for  they  have  committed  to  you  the  vindication  of  the  laws  upon 
which  all  our  lives  depend.  If  the  prisoner  be  proved  guilty,  and  you  find 
him  innocent,  you  sap  the  foundations  of  government,  by  destroying  the 
confidence  of  the  people  in  the  administration  of  justice.  Why  is  it  that  our 
ears  arc  so  often  shocked  with  accounts  of  deeds  of  villany  and  bloodshed  ? 
Why  the  assembling  together  of  men  without  law  or  the  form  of  a  trial, 
assuming  to  themselves  "the  right  to  take  the  lives  of  offenders  ?  It  is 
because  courts  and  juries  have  failed  to  execute  the  laws.  The  people 
have  lost  confidence  in  the  regular  administration  of  justice.  Gentlemen, 
this  trial  must  necessarily  be  long,  tedious,  and  painful.  Let  me  urge  upon 
you  to  arm  yourselves  with  patience,  as  you  would  consult  your  own  future 
peace.  This  trial  will  be  an  epoch  in  your  lives.  You  will  think  of  it  at 
your  firesides,  upon  your  farms,  by  the  way-side,  in  the  long  sleepless 
watches  of  the  night,  in  the  last  dread  hour  of  review,  when  your  past 
lives  rise  up  before  you — as  dark  and  forgotten  things  arc  suddenly  il- 
luminated by  light  from  eternity,  this  will  stand  out  as  one  of  your  most 
important  acts  and  greatest  responsibilities.  But  if  through  fear,  favor,  or 
partiality,  or  from  any  other  weakness — if  through  an  overlooking  of  the 
law  and  testimony,  which  you  are  bound  to  observe  by  your  solemn  oaths — 
if  by  any  assumption  of  that  power  to  decide  upon  the  expediency  of  a  trial 
and  conviction,  a  power  which  belongs  to  the  executive  alone  and  not  the 
judiciary — if  through  vain  and  presumptuous  attempts  to  overlook  the  cause 
and  weigh  the  consequences — if  from  any  or  all  of  thq§e  causes  you  fail  to 
vindicate  the  confidence  which  the  law  has  reposed  in  you,  you  will  then, 
at  the  last  hour,  bitterly  but  vainly  regret  it.  Gentlemen,  I  have  but  one 
word  to  say  ;  it  is,  that  throughout  this  trial,  in  every  stage  of  it,  you  are 
to  keep  fixed  before  you,  its  if  written  in  letters  of  fire — Be  just  and  fear 
not. 


t;*.' 


iM 


'.    ''is 


'h  ' 


'an 


M 


■Ml 


>;  It 


MCLEOD  S   TRIAL. 


4& 


■^ 


44. 


EXAMINATION  OF  IVITNESSES  FOR  THE  PROSECUTION. 

William  Well-'i,  tlic  first  witness  called  and  sworn,  was  examined  by  Mr. 
WooiIh.  He  said  :  I  reside  in  BuiFalo.  I  was  born  there.  I  am  now  35 
years  old.  In  Deccnibcr  of  1837,  1  was  owner  ol"  the  steamboat  Caroline. 
'Wht;n  I  bouiilit  her,  she  lay  in  the  slip  or  ship  canul  at  ButlUlo.  1  fitted 
her  up  immediately,  and  on  the  29tli  of  l)(;ceiiiber  I  ran  her  down  to 
Schlosser.  I  lay  up  that  night  at  Schlosscr  about  six  o'elock,  and  made 
her  fast  by  a  chain  cable.  There  is  a  frame  dock  there,  made  of  timber. 
After  supper  I  set  a  watch,  and  did  what  is  usual  on  steamboats.  I  gave 
each  man  his  duty  and  retired  to  rest.  Sylvanus  Stearing  was  on  deck. 
About  12  o'clock  I  was  awoke  by  the  hands  of  the  vessel,  who  com- 
plained that  their  berths  were  occupied.  The  hands  had  been  to  Niagara 
Falls,  and  when  they  returned,  they  wished  to  have  their  berths.  1  told 
the  strangers  who  occupied  them,  that  the  condition  on  which  they  were 
permitted  to  occupy  them,  was,  that  they  should  be  given  up  when  the 
hands  returned.  Those  persons  were  strangers  to  me,  and  had  come  on 
board  for  lodging  for  the  night.  Afterwards  some  one  put  his  head  into 
the  cabin,  and  said  a  boat  was  coming,  with  men  in  it.  I  do  not  know 
who  informed  me,  nor  whether  it  was  to  inform  me  alone.  Captain  Ap- 
plcby  and  myself  directed  him  not  to  let  any  one  come  on  board,  but  to 
see  who  they  were.  He  stepped  from  the  companion-way,  and  then  said 
there  were  four  or  five  boats  full  of  armed  men  coming,  and  he  called  to 
me  to  come  on  deck.  I  got  out  of  my  berth  and  was  dressing,  and  I  heard 
a  terrible  uproar,  and  men  on  board  ;  I  heard  the  report  of  one  or  more 
pistols  or  guns,  and  the  noise  of  feet  on  deck.  There  was  much  hallooing 
and  noise:  I  stood  by  the  side  of  my  berth  until  I  was  dressed;  I  made 
up  my  mind  that  they  wanted  the  boat,  and  thai  that  was  till  the  harm  they 
would  do ;  I  knew  they  had  possession  of  the  deck,  and  I  secured  my 
papers  and  little  effects  in  the  berth,  and  started  for  the  companion-way. 
Before  I  could  get  on  deck  I  heard  orders  given  to  give  no  quarter,  but  to 
kill  the  damned  Yankees,  or  words  to  that  effect.  I  asked  Captain  Ap- 
pleby what  we  should  do  ?  He  said  he  did  not  know ;  we  must  do  as 
well  as  we  could.  I  did  not  get  on  deck.  Capt.  Appleby  placed  one  foot 
upon  deck,  when  some  one  on  the  cylinder  took  hold  of  his  collar  and 
shoved  him  back,  saying  they  would  kill  him,  which  crowded  me  down 
stairs.  I  went  back  below,  turned  round  to  the  right  to  pass  forward  of 
boiler,  which  was  below  deck,  to  make  escape  from  forward  hatch  ;  while 
I  stood  looking,  a  man  jumped  down  into  fire-room  ;  I  was  sta.nding  aside 
of  and  little  back  of  front  of  boiler  in  the  dark ;  he  turned  round,  took 
poker,  and  commenced  poking  the  fire,  as  I  supposed,  to  get  up  steam  to 
take  off  the  boat ;  I  stood  till  he  was  busily  engaged,  then  went  back  to 
the  cabin  stairs ;  I  went  up,  intending  to  run  out ;  ascended  on  hands 
and  feet ;  I  put  my  head  up  to  the  cabin  door,  which  was  open,  brushed 
against  the  calf  of  a  man's  leg  standing  on  the  stairs ;  was  not  yet  at  the 
top  of  the  steps ;  thought  he  felt  it,  and  sprang  below  ;  turned  round  and 
went  forward  again  ;  run  against  some  one,  supposed  to  be  one  of  the  at- 
tacking party ;  he  spoke ;  I  knew  his  voice  ;  did  not  name  one  of  his  men 
in  the  boat ;  passed  each  other — he  to  the  cabin,  and  I  to  my  first  position 


m 


f. 


m 

if 


1 


.ll 


!! 


1 


n 


46 


Gould's  reporter. 


near  the  front  of  the  boilrr,  looking  for  n  dmncc  to  escape  up  tlio  forward 
hotch  ;  mini  raLscd  up  from  furnace,  stepped  in  front  of  ni(!  and  seized  a 
man  l)y  the  eollar  who  wuh  concealed  in  the  win<f  ofllie  ijo.'it,  and  pulled 
hiui  out  to  tlu;  lif^ht ;  asked  who  he  was,  and  what  doinji ;  he  said  he  b<;- 
lonyed  to  the  huat ;  it  was  Ourfee  ;  he  kmnv  him  as  Ik;  stepped  aside, 
and  learned  his  uanu;  to  he  Duvft^e  next  morning;  he  pulled  him  along 
to  hateh-pump,  felling  him  to  follow  on  deck,  or  he  would  blow  his  brains 
out;  felt  in  his  belt,  hut  saw  him  draw  nothing;  Durfee  followed;  held 
on  to  Durfee's  collar :  last  step  let  go  and  Durfee  sprang  on  deck  ;  in- 
tended when  he  saw  me  to  surrender,  but  when  Durfee  was  on  deck 
thought  better  not,  from  what  he  sav/.  Durfee  trying  to  get  on  shore, 
turned  eyes  to  starboard-river  side  of  boat ;  saw  small  hole  eight  inches 
open,  and  thought  he  would  get  out  overboard  and  swim  ;  put  head  out, 
saw  boat  full  of  men  under  him.  Went  into  after  cabin,  threw  off  over- 
coat to  swim;  retired  to  fire-room,  put  head  out  of  hole,  and  saw  boat 
with  men  armed  in  it ;  one  standing  in  bow  as  if  he  had  thrown  painter 
of  yawl  on  the  steamboat  near  the  bow,  swinging  rf)und  with  the  current, 
bows  up  stream,  sniall  boat  on  the  river  side.  Steamboat  registered  46 
tons;  low  bows,  yawl  just  under  guards;  could  step  from  the  boat  to  the 
steamboat;  steamboat  about  75  feet  long.  Could  not  escape;  returned 
again  to  cabin ;  recollected  one  of  the  stern  cabin  windows  had  been 
out  a  few  days  previous,  and  thought  could  escape  there  ;  went  aft, 
got  in  the  locker,  worked  at  the  window ;  began  to  loosen,  and  saw  two 
boats  made  fast  to  the  steamboat,  one  to  each  quarter,  swinging  with  the 
current,  and  guard  in  each ;  went  into  the  centre  of  the  cabin,  to  act  ac- 
cording to  circumstances  ;  felt  the  boat  move,  ran  up  stairs  to  deck  en- 
gine-room ;  felt  her  stick  to  wharf ;  door  open;  saw  no  one  standing; 
wait  for  better  opportunity ;  stepped  back,  heard  noise  at  or  near  stern 

of  the  boat ;  whilst  standing,  heard  man  cast  off;  "  God  d n,  why 

don't  you  cast  off  from  her;"  where  rockets;  stepped  out,  saw  no  one, 
knew  had  to  go  ashore  at  the  forward  gangway ;  saw  three  men  standing 
twelve  or  fourteen  feet  off  across  starboard  gangway,  and  determined  to 
surrender;  went  to  first;  had  sword  in  hand;  second  one  boarding  pike; 
third  leaning  on  his  sword  ;  stepped  to  surrender  to  first ;  looked  at  him  ; 
he  looked  away,  supposing  I  was  one  of  his  party ;  passed  the  third  to- 
wards  bow  ;  when  opposite  gangway,  crossed  deck  to  go  otT,  placed  hand 
on  rail  to  step  on  dock  and  was  seized  by  first  of  the  men  ;  drown  these  ; 
who  are  gone  ;  covering  of  deck  broken  up  ;  turned  round,  told  him  I  did 
not  belong  to  boat ; .  on  shore  ;  started  toward  me  when  pistol  -fired  behind 
them ;  they  looked  round,  I  jumped  off  the  dock  and  got  behind  wheel- 
house  ;  passed  on  to  the  railroad  track ;  when  I  got  to  railroad  saw  a  man 
lying  on  lower  track,  head  towards  water  three  or  four  feet  from  edge  of 
wharf ;  looked  at  him ;  warehouse  at  upper  end,  gable  end  to  river ;  boat 
close  to  warehouse,  upper  story  projected  to  edge  of  wharf;  could  step 
from  door  of  upper  story  to  deck  of  boat ;  water  under  warehouse  ;  bow 
projected  above  end  of  dock  ;  railroad  on  dock  below  warehouse  ;  three  or 
four  feet  from  warehouse ;  man  lying  on  rail  farthest  from  the  house ; 
head  to  river  and  about  opposite  aft  gangway ;  passed  on  railroad  track 
north  of  tavern ;  march  from  main-road  till  further  than  inner  edge  of 
wharf;  snw  two  men  eight  or  ten  rods  from  river;  tavern  little  east  of 
north  from  warehouse,  about  sixty  rods ;  kept  by  Field ;  looked  a  mo- 
ment ;  supposed  they  were  guard ;  looked  round  to  him  ;  party  ran  from 


boat 

sp()l< 

mt'U 

nut 

li\n-t 

him 

rods 

and 

dead 

cros? 

shatt 

of  k 

what 

aiiot 

brail 

m'cr 

cami 

wen 

niun 

boar 


II 


N 


i 


Mcleod's  trial. 


47 


fipo  up  tlin  forward 
>i'  iiH!  jind  scizod  a 
(■  bo.'U,  and  pidlcd 
ip ;  lit)  said  Ikj  bo- 
li(!  stc|)p(:(|  aside, 
1  pulled  jiim  along 
lid  blow  his  brains 
ro  followed  ;  held 
ang  on  dock ;  in- 
rf('«  was  on  duck 
t(»  get,  on  shore, 
hole  eight  inches 
im  ;  put  head  out, 
n,  threw  ofF  ovcr- 
ole,  and  saw  boat 
id  thrown  painter 
with  the  current, 
loat  registered  46 
)m  the  boat  to  the 
escape  ;  returned 
■indow.s  had  been 
there  ;  went  aft, 
ien,  and  saw  two 
swinging  with  the 
!  cabin,  to  act  ac- 
Jtairs  to  deck  en- 
lo  one  standing ; 
at  or  near  stern 

rod  d n,  why 

out,  saw  no  one, 
•ee  men  standing 
id  determined  to 
e  boarding  pike; 
looked  at  him ; 
ised  the  third  to- 
olT,  placed  hand 
I ;  drown  these  ; 
d,  told  him  I  did 
istol  -fired  behind 
»t  behind  wheel- 
road  saw  a  man 
!et  from  edge  of 
d  to  river  ;  boat 
larf ;  could  step 
mre  house ;  bow 
house ;  three  or 
rom  the  house; 
railroad  track 
I  inner  edge  of 
rn  little  east  of 
looked  a  mo- 
party  ran  from 


boat;  cast  ofT  and  towed  into  stream.  Snpposfd  mon  were  after  him; 
spoke  to  tlicm  ;  well  bitys,  how  (Idoh  it  g.);  nicogni'/.fd  two  of  his  own 
men;  .loliu  H.  Siuilli  ;  asked  where  rest  oi'  hands;  asked  for  King;  did 
not  know  ;  saw  King  coming  in  the  road  ;  went  \o  im-et  him  ;  saw  he  was 
hiu't.  You  are  hurt?  Yes,  they  have  cut  nie  almost  to  pieces.  Assisted 
him  to  the  house.  Cuiild  see  without  recognizing  a  nian  four  or  five 
rods;  partly  starlight.  Would  have  to  be  well  aerpriinted  with  person 
and  dress.  Did  not  see  Durfec  again  till  next  morning;  h(>  was  then 
dead ;  lying  on  his  back,  between  inside  track  anri  warehouse ;  arms 
crossml  on  br(;ast ;  brains  blown  out  and  scatteri.'d  on  the  ground  ;  h(;ad 
shattered  to  pieces;  ball  entered  at  back  of  head,  came  out  near  middle 
of  forehead  ;  puddle  of  blood  near  him.  ^Jaw  his  cap  at  the  house  ;  was 
what  is  called  a  sealet  cap  ;  found  a  hole  just  above  the  band  behind,  and 
another  above  vizor,  in  front ;  cap  looked  as  if  singed  behind ;  blood  and 
brains  covered  a  small  space  where  his  head  lay  before  he  was  turned 
over  on  his  back.  Boat  was  boarded,  he  thinks,  about  12  o'clock,  but 
cannot  say.  Don't  know  how  many  assailants,  but  think,s  forty  or  fifty  ; 
wen;  five  yawl  boats ;  carry  about  eight  or  ten  men  comfortably ;  the 
men  or  watch  on  boat  were  not  armed,  nor  were  the  men  lodging  on 
board  arnncd.  To  his  knowledge  no  arms  belonging  to  boat.  About  33 
persons  on  boat.  The  men  "ho  came  on  board  had  been  left  by  cars. 
Field's  tavern  was  full,  and  could  not  get  supper  or  lodging,  and  received 
permission  to  lodge  on  board.  Durfee  did  not  belong  to  boat ;  was  one  of 
the  lodgers.  Schlosser  is  in  town  and  county  of  Niagara,  two  miles  above 
the  falls.  Search  was  made  next  day  for  the  men  on  board  the  boat,  of 
whom  seven  were  missing;  two  of  them  prisoners;  the  rest  never  heard  of. 

When  King  reached  the  house  found  a  bad  cut  four  inches  on  left 
shoulder,  another  on  left  arm  below  elbow,  as  if  received  in  warding  off 
blow  of  sword.  Others  wounded.  John  Leonard  received  a  blow  on 
forehead.  Captain  Harding  received  a  blow  cutting  leather  front  of  cap, 
and  skin  on  forehead. 

The  object  in  running  boat  was  to  make  money.  Boat  made  three  trips 
that  day — started  at  Buffalo,  landed  at  Black  Rock  Dam,  Tonawanda,  Navy 
Island,  and  Schlosser,  and  made  two  trips  from  Schlosser  to  Navy  Island. 
Carried  passengers  both  ways,  to  the  Island  and  back,  and  what  freight 
offered,  to  the  Island.  Brought  none  back.  Captain  G.  Appleby  acted 
as  captain  that  day.  Neither  boat  nor  I  had  any  connection  with  men 
on  Navy  Island.  Thinks  Durfee's  not  the  same  body  saw  previous 
evening.  It  was  not  King.  Heard  40  or  50  shots  fired  and  clashing  of 
swords.  Men  on  boat  had  no  swords  to  my  knowledge.  One  party 
boarded  at  forward  and  one  at  aft  gangway.  Were  lights  on  board  in 
lower  cabin  ?  There  was  light  in  companion-way,  but  don't  know  if  lamp 
was  there — thinks  it  would  not  have  been  lighted  from  any  other  place. 
Put  out  the  lights  after  they  were  boarded,  to  prevent  their  coming  in  the 
cabin. 

Cross-examined  by  Mr.  Spencer — The  light  was  immediately  extinguish. 
ed  in  companion-way.  Boat  was  of  peculiar  construction,  and  a  stranger 
could  not  well  find  his  way  down  in  the  dark.  Had  but  two  hands  on  the 
boat.  King  and  a  black  boy  ;  found  but  one  person  killed.  Cannot  name  any 
person  missing  ;  and  do  not  know  those  inquired  for  on  the  boat.  Did  not  see 
D.  to  know  him  till  morning  ;  saw  no  other  blood.  Durfee  seemed  to  have 
fallen  and  died  on  the  spot :  is  quite  sure  cap  was  scorched ;  knew  whether  cap 


i.    ■' 


I'l 


i^4 


Wf' 


:■■  ; 


46 


(iOULU  S   REPORTER. 


•  'P 


p! 


-iij'l 


Kili 


was  Hcorcliinl  or  not.  liiiko  ICrio  usually  closes  lOth  December.  Boat  had 
b(!<!n  s(i/.<'(l  fur  sniu^frliii<{  in  suuuiier.  I  bouf^'ht  her  uiid  furnislicd  the 
nion<;y.  Hail  been  Intzcii  in  a  wcrk  or  so;  was  lying  in  ship  eanal— <nit 
out  on  'J.")lli  to  '2Sth  Dccrrnbcr  ;  no  bond  of  indenuiity  {^iven  or  written 
before  sturtin^r,  to  his  knowledjfo.  It  was  talked  of  with  me.  Understood 
on(!  was  to  be  given  ;  tloes  not  know  fur  what  obji;el — supposed  to  indi;ni- 
uify  owners  in  ease  of  accident  to  boat.  Understood  it  was  done  and 
signed  by  some — was  to  be  signed  by  twenty — signed  by  live;.  Loaded 
nl  JJulliilo.  Don't  know  freight  was  put  on  board  and  put  ashon;  by  ordt  r 
of  the  (Jollector.  Stnall  stove  and  cask  was  put  on  board  ;  don't  know 
what  was  in  the  cask.  About  half  a  doztMi  persons,  including  hands, 
sailed  from  Hufliilo ;  touched  at  Black  liock  Dam  ;  here  got  liallianls  for 
vanning  up  colors ;  don't  know  that  I  took  in  freight.  Men  came  ou 
board — say  half  a  dozen;  one  man  had  a  ride.  VVerc  no  armed  men 
on  board — if  they  had  arms  they  did  not  have  them  in  their  hanils.  IawkI 
freight  and  pasa(;ngers  on  scow  at  the  Island.  Was  si)  occuipied  with  look- 
ing at  the  working  of  the  machinery,  that  I  did  not  notice  much  what  was 
going  on.  Was  not  engineer  myself.  Have  not  n)ade  application  for 
payment  of  boat  to  government ;  been  examined  as  to  use  of  boat.  Ex- 
pect to  be  paid  by  governmi^nt.  l^xpccted  to  run  between  Schlusser  and 
Island  as  long  as  profitable — running  up  to  the  dam  at  night  ;  this  was  tlie 
use  to  be  made  of  the  boat — sujjposed  she  would  not  be  emjjioyid  mor; 
than  a  week.  Did  not  run  up  that  night  because  one  of  the  engineerM 
told  him  a  piece  of  the  machinery  was  gon<!,  and  it  would  not  be  safe  to 
run  her.  Tliey  were  my  friends,  and  looked  at  the  machinei'y  from  curiosity. 
Took  to  the  Island  a  six  poinider  cannon,  first  trip  from  Scblosser.  A 
horse,  lumber,  boards,  and  straw.  Don't  know  what  intended  for.  Did 
not  inquire.  Some  provision,  don't  remember  what  kind.  Tiiought  the 
boat  would  be  employed  a  week,  because,  supposed  the  men  would  return 
to  this  side  and  disperse.  Did  not  understand  they  would  cross  1o  Canada. 
Was  pn  Navy  Island  two  or  three  hours  on  the  26th  December  ;  crossed 
from  Scblosser  in  sail-boat ;  saw  about  250  men  ;  10  or  11  pieces  cannon  ; 
eaw  nontj  at  Scblosser ;  some  on  the  Island  were  pointed  towards  the 
Canada  shore  ;  don't  know  whether  there  had  been  firing  either  way. 
Understood  Van  Rensselaer  was  in  command.  Don't  know  who  paid 
freight ;  don't  mean  to  say  he  charged  regular  freight ;  received  eight  or 
ten  dollars  for  freight  and  passengers.  Don't  remember  any  items 
charged  or  paid,  cither  for  freight  or  passage,  except  one  dollar  from  a 
stranger.  Taverns  about  Scblosser  and  the  Falls  were  full — don't  know 
I  saw  any  arms  on  shore — don't  remember  any  firing  on  Navy  Island  that 
morning.  Understood,  before  he  left  Buffalo,  thei-e  had  been  firing  be- 
tween Navy  Island  and  Canada.  Did  intend  to  run  boat  to  favor  men  on 
Navy  Island.  Saw  on  the  Island,  two  or  three  days  before  took  down  the 
boat.  Van  Rensselaer,  with  whom  conversed  about  coming  down  with 
boat.  They  requested  it ;  no  agreement.  They  said  I  could  make  money 
out  of  it.  Was  not  referred  to  an  Executive  Committee  at  Buffalo ; 
knew  from  hearsay  there  was  such  a  committee  to  aid  the  Navy  Islanders  ; 
committee  of  thirteen ;  don't  know  who  they  were.  Understood  Dr. 
Johnson  was  one.  Conversed  with  Phelps  about  boat.  Did  not  pay  for  boat 
being  cut  out ;  many  persons  helped ;  cut  out  150  or  200  feet.  Would 
not  have  cut  out  the  boat  but  for  this  particular  service,  or  other  service 
as  profitable  as  this.     Boat  about  a  fortnight  undergoing  repairs.    Cost 


.$101 
paid 
an<l 
inl'ii 
liri 
in  111 
ihefU 
Don" 
the  i> 
vade 
At 
with 
diiti; 
do  w 
caii, 
\\v 


•^^Mi_ 


1 


3mbcr.  flofit  had 
liiid  furniHlird  the 
II  ship  ciinal — cut 

f^ivoii  or  written 
iri(!.  IJiidf  rstood 
i|)[»o.scd  to  indt.'in- 

it  was  dune  aiid 
ly  live.  Luiided 
t  iishorc!  by  order 
lard  ;  don't  know 

including  hund.s, 

got  hnlliards  for 
Men  ciiriio  on 
e  no  armal  tncn 
;ir  hiinds.  Liuid 
I'Upied  will)  loo'.- 
!  much  what  was 
appiicutioii  for 
SG  of  boat.  Ex- 
[!ij  Sehiosser  and 
;lit  ;  tliis  was  the 

eniployid  nior.) 
ai'  the  engin(!orM 
Id  not  bo  safe  to 
7  from  curiosity. 
n  Sehlossscr.  A 
ended  for.  Did 
L  Tlionght  the 
ion  would  return 
cross 1o  Canada, 
ember  ;  crossed 

pieces  cannon ; 
ted  towards  the 
ing  either  way. 
know  who  paid 
eceived  eight  or 
nber  any  items 
e  dollar  from  a 
iiil — don't  know 
'*favy  Island  that 
been  firing  be- 
to  favor  men  on 
3  took  down  the 
ling  down  with 
lid  make  money 
tee  at  Bufluio ; 
Vavy  Islanders ; 
[Jndorstood  Dr. 
not  pay  for  boat 
0  feet.  Would 
or  other  service 

repairs.     Cost 


-^ 


MCLEOD  S  TRIAL. 


40 


$100.  Think  I  furnished  the  money.  Mr.  Swaiiton  says  he  thinks  he 
paid  it.  ami  1  am  very  ciTlain  1   fiu'nislii!il  it.      Purchased    1st  Dicenibcr, 

and  I'liniineiiCMl  rrpairiuLf  i iudi:it''ly.     Did  not  repair  for  this  service  ; 

intended  to  run  li'T  to  (lattaruug'is  Creek,  to  be  above  the  ice  wlirii  lake 
broke  up  in  llie  s|)!-ing.  Hoal  e(jst  fJil'SllO—  .l"  John  1'.  Murriiy,  bill  of  sale 
in  his  name — made  I'w  bargain  with  I*.  II.  limkin.  .M-'etiu'^' at  Hullido 
theatre — .sympatlii/iiig  with  Canadians.  .M.- Ken/it;  of  (Janada  spoke. 
Don't  know  whether  then;  was  a  proctissioti  or  martial  music.  Undiu'stood 
the  ol)|ect  of  the  islanders  was  to  froo  Cuiada,  that  they  intended  l(»  in- 
vade Canada. 

Attorney  (ieneral — .\in  not  connected  in  any  way,  op  >nly  or  secretly, 
with  the  islandi;rs.  Undi'r.stood  iIk;  nniuing  of  the  boat  would  acconimo- 
date  the  islanders  iind  people  in  IJullalo,  ami  denied  havinti;  any  thing  to 
do  with  b  )nd.  Went  in  good  faith  and  vtuly  for  i^ain.  Hole  in  liutk  of 
cap,  soinid  in  front,  triangular.  \)ou'\.  know  of  his  own  knovvl(;dge  that 
the  committee  of  thirteen  existed.  Don't  know  whether  I  invited  tin: 
engin(;ers  to  go,  they  always  go  on  the  lake  by  courtesy,  and  1  asked  no 
(|U<'stions. 

Spencer — Did  not  take  caimon  balls  i'rom  W.'s  furnace.  Don't  know 
they  were  taken.  Cask  was  a  quurtt.'r  cask.  Did  not  take  boihn-  iron 
punchings.  Collector  told  me  I  coidd  carry  any  thing — arms  and  annmi- 
nilion  as  freight  if  I  would  run  the  risk  of  being  taken  iti  the  Hritish 
waters,  without  violating  a  llnii(;d  States  law.  Don't  recollect  taking  a 
cask  of  boiler  punchings  from  Black  Rock. 

Adjourned  to  a  quarter  before  8  to-morrow  morning. 


Second  Day  of  the  Trial. 

Daniel  J.  Stewart  was  the  first  witness  called  this  morning  Ho 
was  examined  by  Mr.  Hawley.  I  reside  in  Buflhlo.  I  resided  there 
in  December  1837.  I  was  on  board  the  Caroline  at  Sclilosser.  I 
left  Buffalo  in  her  about  8  o'clock  in  the  morning,  touched  at  tlie 
Island,  and  then  proceeded  to  Schlosser,  where  I  arrived  about  two 
o'clock.  We  made  two  trips  to  the  Island  afterwards  the  same  day. 
We  tied  up  at  the  wharf  about  six  o'clock.  The  boat  lay  with  her 
bows  up  stream,  moored  to  the  wharf.  I  was  called  on  watch  at  12 
o'clock.  About  half  an  hour  after  I  and  Capt.  Kennedy  came  on 
watcli,  we  discovered  boats  nearing  us.  My  first  impression  was, 
they  were  Indians ;  the  woods  making  a  considerable  of  a  shade  on 
the  water,  it  was  hard  to  tell  what  they  were  filled  with.  I  mean  the 
wooden  buildings.  Some  of  those  boats  were  opposite  the  bows, 
but  oft'  in  the  stream  a  little  when  I  saw  them  ;  they  were  inside  of 
the  small  island,  which  lies  eight  or  ten  rods  from  the  dock.  It  may 
be  more ;  I  merely  guess,  perhaps  it  is  twenty  rods.  I  told  Captain 
Kennedy  he  had  better  call  them  up  from  below — from  the  little 
cabin.  The  boats  that  I  saw,  I  think  were  floating  down  stream  ; 
they  did  not  use  their  oars  I  think.  Capt.  Kennedy  called  those  in 
the  cabin.  There  was  a  man  w^ho  came  on  deck  just  before  j  his 
name   was  Nichols,  and  he  hailed  them.     He  asked,  "who  comes 

7 


'.  II 


^''i 


lt:;|i 


5U 


(fOULR  »    REI'OUTER. 


there?"  The  nnHwer  WHS,  "  frlcmls."  They  nppoiiicd  to  spriiip  on 
their  nmH  then,  as  if  ihey  round  they  were  (iJsoDVi'red.  \\  hen 
Nieliols  hiiih'd,  lh<'  hrst  boat  was  not  inr)ie  tlian  three  or  I'onr  rods 
from  lh<'  how  ol'  the  hoat  ;  one  hoat  ran  down  t<i\vards  the  stern  of 
the  sleainhoat.  I  ran  all  lor  ihe  pnrpowe  of  seeing'  who  they  were, 
nnd  when  1  got  there  the  odieer  of  the  first  \yinl  had  ii;ol  on  deek. 
lie  <^i)\  (»ver  llie  rail  a  htlle  aft  of  the  i,'an<r\\ay.  Ity  the  lime  1  had 
got  np  to  iinn  he  had  ^ot  his  sword  (hawn,  and  threw  himself  in  an 
iUtitudft  us  if  lie  was  goinp:  to  strike;  me  He  then  ordered  his  men 
on  deck.  I  tlien  discovered  several  armed  men  in  the  aet  of  petting 
on  hoard.  1  then  went  into  the  (allies'  eahiii,  to  give  the  aiariii  theri;. 
The  ollieer  stood  near  tlie  ladies'  cahin.  1  am  not  sailor  enough  to 
know  whether  I  went  starhoard  or  larboard  side.  It  was  the  river 
side  of  the  boat.  I  fonnd,  in  the  euhin,  they, had  Ix'cii  alarmed,  and 
were  getting  up.  I  then  eainf;  nut  of  the  cabin  and  went  ashore.  I 
was  not  armed.  The  cal)iii  of  which  I  have  been  speaking  was  on 
de("k.  1  lired  no  arms  that  night.  Neither  Kennedy  nor  Nielnds 
were  armed,  nor  did  they,  to  my  knowledge,  discharge  any  (ire-arms. 
I  did  not  see  that  any  of  the  erisw  or  passengers,  who  lodged  there, 
had  arms.  I  have  no  knowledge  «)f  luiy  arms  on  board.  I  saw  no 
resistance,  nor  preparations  for  resistance.  When  I  was  set  to  watch 
I  did  not  expect  an  attack  from  iniy  (jnarter.  It  is  enstomary  to  set 
watch  on  steainl)oats.  When  I  (irst  saw  these  men  I  did  not  discov- 
er that  they  were  armed.  I  oidy  discovered  it  when  I  went  aft. 
When  I  went  aft  none  of  them  had  boarded  forward  ;  they  might 
have  boarded  both  at  the  same  time.  There  was  considerable  con- 
fusion. W  hen  I  came  out  of  the  ladies'  cabin  1  heard  the  discharge 
of  lire-arms.  The  ladies'  cabin  was  over  the  hull  of  the  stern  part, 
leaving  a  passage  round  it.  I  saw  Durfee  dead  the  next  morning 
about  8  o'clock.  1  saw  him  the  evening  before.  I  discovered  four 
or  five  boats  approaching.  I  went  up  above  the  main  railroad  and 
saw  the  boat  (burn.  I  saw  she  was  towed  into  the  stream  by  row 
boats.  After  the  boats  got  out  of  the  sight  of  the  steamer,  which 
was  on  fire,  I  did  not  see  which  way  they  went.  When  I  came  out 
of  the  cabin  and  was  going  towards  the  shore,  I  heard  the  officer  say, 
"  Guard  the  gangways — show  the  damned  rebels  no  quarter."  I 
don't  know  that  the  officer  was  in  uniform,  but  he  had  a  sword  and 
assumed  the  command.  The  companion  way  from  the  gentlemen's 
cabin  came  up  partly  through  the  engine  room.  It  was  a  narrow, 
crooked  way,  and  different  from  the  companion  way  of  boats  gener- 
ally. 1  believe  there  were  only  two  discharges  of  fire-arms  before  I 
left  the  boat.  I  heard  several  after,  and  considerable  clashing  of 
swords.     There  was  no  firing  from  shore. 

Cross-examined  by  Mr.  Spencer. — I  saw  Durfee  in  the  course  of 
the  afternoon,  when  we  were  running  from  Navy  Island  to  Schlosser. 
I  don't  know  that  he  went  down  from  Buffalo.  I  had  never  known 
him  up  to  that  time.  He  told  me  he  was  a  stage  driver  in  Buffalo. 
That  was  my  first  trip  down.  I  considered  if  there  was  any  thing 
to  do  on  board  I  was  to  do  it.  I  was  not  employed  as  a  hand.  It  is 
customary  for  boatmen  to  ride  on  any  boat  for  nothing,  but  if  they 
aipe  asked  to  do  any  thing,  to  do  it.     I  had  been  a  boatman  for  two 

■  % 


year 

1  doi 
sc\  '■ 
in  at 
a  1)111 
ant 
ai  iiii 
ai  Bi 
two 
hut 
We 
dowi 
wain 
Schi 


"f^ 


:ii, 

^ 


^?F 


MCLEOD  S   IIUM, 


r.i 


«'(1  to  spriiip  on 
'Kvcrcd.     \\li('ii 
■('(!  or  tour  rods 
rdH  tlio  storii  of 
who  llicy  wvTv, 
III   {fot,  on  deck. 
tli(>  tiiMc  I  had 
w  himself  in  an 
)rd«'rc(l  liis  jncn 
e  act  of  pottiiifr 
thp  .'iliirni  thiT(.'. 
ailor  (Mion<rli  t(» 
t  was  (Ju!  river 
L'o  aliirniod,  and 
vent  ashore.     I 
|)eakin<r  was  on 
dy  nor  Nielnds 
e  any  lire-arms, 
I)  lodired  there. 
»ard.     I  saw  no 
viiH  set  to  watch 
istoniary  to  set 
did  not  discov- 
len  1  went  aft. 
•d  ;  they  niia^ht 
nsiderahle  con- 
i  the  discharge 
the  stern  part, 

next  morrung 
scovered  four 
n  railroad  and 
stream  by  row 
iteamer,  which 
len  I  came  out 
the  officer  say, 

quarter."  I 
d  a  sword  and 
e  gentlemen's 
vns  a  narrow, 

boats  gener- 
-arrns  before  I 
e  clashing  of 

the  course  of 
i  to  Schlosser. 
never  known 
er  in  Buffalo, 
vas  any  thing 
a  hand.  It  is 
g,  but  if  they 
tman  for  two 


■4 


years.  1  went  to  see  what  was  ffoini;  on  mi>re  than  any  thinp  else. 
1  don't  remember  doinjr  nny  tliintr  <»ii  hitard.  There  were  perhaps 
seven  <ir  ei'/lil  on  hoinl  froiii  i'Milliilo.  |  doti'l  know  what  w.m  laKen 
in  al  lliid'.iio,  hilt  some  lliin;::'!  wre  put  on  hoard  there.  There  was 
a  barrel  or  two  I  saw  on  hoard,  but  1  can't  say  as  to  any  thing  else, 
and  I  dill  not  see  ihem  t;iKeii  on  hoard.  1  saw  holhi!!:^- taken  <m  hoard 
ai  any  oilier  |)lace.  I  ean't  say  how  many  barrels  or  packages  1  saw 
at  Hiilliilo.  Al  Blade  Kock  Dam  we  took  provisions  on  hoard,  and 
two  men,  if  no  more,  came  on  board;  one  ol"  llicm  had  a  irim,  I  think, 
hut  1  saw  no  more  on  hnurd,  nor  did  1  see  any  laiuled  al  Navy  Ishiml. 
Wc  tomdied  at  Tonnwanda,  and  perhaps  at  (I rand  Island,  coining 
down  from  lliilllilo,  hut  1  believe  we  tooic  nolhiii;"  on  lioanl  at  Toiia- 
wantla.  1  don't  kin>w  lor  whal  jnirpo  e  th"  boat  was  taken  down  lo 
Schlosser.  At  Navy  Island  some  few  things  were  put  ashore,  but  1 
don't  know  what  they  were  ;  I  did  not  handle  them.  Soirnj  men 
J)erhaps  went  ashore  at  Xuvy  Island,  hut  they  retiirn<;d  again.  I  tliiidi. 
none  stayed  ashore  there.  Wc  then  went  lo  Schlosser,  and  there  they 
took  on  some  ihinirs  lor  the  Island.  On  one  of  the  trips  ihey  took 
some  straw,  and  one  pieces  of  cannon.  There  was  a  (piarter  of  beef 
too,  and  some  boards,  I  think.  I  saw  no  other  provisioi»s,  or  mnni- 
lious  of  w.ir.  These  are  all  I  saw.  A  good  many  men  passed  over 
from  Schlosser  to  Navy  Island.  I  ean't  say  how  immy,  perhaps  lil- 
tcen  or  twenty.  I  can't  say  as  to  their  being  armed.  Some  might 
li;ive  been  so,  bat  I  dcni't  recollect  seeino:  any  arnu'd  men  laiul  on  the 
Island.  I  saw  one  or  two  innskets  standint;  in  a  corner  in  the  ladies' 
cabin,  but  I  can't  say  if  they  were  landed  at  Navy  Islatul.  I  saw  no 
armed  men  on  the  boat  al  all.  I  did  not  go  ashore  at  the  Island.  I 
had  never  been  at  Schlosser  before.  There  were  a  good  nniny  men 
there.  They  appeared  to  be  going  and  coming  the  whole  time,  but 
I  can't  say  as  to  their  nnmbers. 

I  was  not  molested  in  getting  ashore  on  the  night  of  the  attack 
from  the  boat.  I  saw  two  or  three  persons  pass  ashore  ahead  of  me. 
Those  are  all  I  saw  go  ashore.  I  don't  know  the  weight  of  the  can- 
non wc  took  over,  but  I  heard  it  was  a  six-ponnder.  I  only  heard 
the  bout  was  going  down  the  evening  before  she  went  down.  I  re- 
side now  in  Buffalo,  and  have  resided  there  all  the  time  since  the 
occurrence. 

Frederick  Emmons  Exnmincth — I  reside  at  Buflalo  ;  lived  there  in 
December,  1837.  On  the  night  the  Caroline  was  destroyed,  I  was 
staying  at  the  inn,  at  Schlosser.  (A  map  was  here  handed  to  the 
wi'.ness.)  I  believe  this  map  to  be  a  correct  map  of  the  localities  of 
Schlosser.  The  small  island  in  front  of  Schlosser,  is  called  Horner's 
Island,  and  is  about  30  rods  from  the  wharf.  When  the  attack  was 
made  on  the  Caroline  I  was  iri  bed  at  Field's  house. 

To  a  question  by  the  Court. — The  length  of  the  wharf  up  and  down 
the  river,  is  perhaps  seventy-five  feet ;  the  warehouse  occupied 
thirty  or  forty  feet  of  the  upper  part  of  the  dock,  so  that  it  left  at|out 
thirty-five  feet  of  docking  below  the  warehouse  ;  tiie  dock  extended 
into  the  river  ;  the  lower  front  of  the  warehouse  was  open  to  enable 
boats  to  load  and  unload  ;  the  upper  part  was  closed  ;  the  floor  oi  -^ 
the  docking  constituted  the  floor  of  the  warehouse;   the  railroad /.^:^; 


'■!  ,..r 


,:.t 


52 


GOULD  S   REPORTER. 


•  :l 


■*>         I 


track  was  below  the  warehouse ;  there  were  five  or  six  feet  between 
the  railroad  and  the  warehouse  ;  the  floorinof  of  this  dockinfr  had 
holes  in  it  to  the  water  ;  there  is  very  little  business  there,  and  it  is 
not  kept  in  jrood  repair. 

By  Mr.  Hawley. — I  was  roused  from  bed  by  some  one  who  said  the 
boat  was  attacked.  We  ssillicd  out,  and  I  went  partly  down  to  the 
warehouse.  I  was  not  armed.  I  knew  Amos  Durfce  ;  I  had  known 
him  for  a  number  of  years.  I  went,  down  to  the  warehouse  after  the 
boat  was  hauled  off;  I  went  down  in  ten  or  fifteen  minutes  after — 
the  row  boats  were  still  in  sight.  I  found  Durfee  on  the  railroad, 
twelve  or  fourteen  feet  from  the  river  ;  he  was  on  the  dock,  between 
the  rails  of  the  railroad  ;  his  head  lay  from  the  river  ;  I  turned  him 
over  and  recognized  him  ;  there  were  two  or  three  others  with  me, 
and  we  had  a  light ;  he  seemed  to  be  dead ;  I  left  immediately  after, 
and  went  to  Buffalo.  On  examining  Durfee,  I  saw  he  was  shot  in 
t.hc  back  part  of  his  head.  1  think  Capt.  Appleby  was  with  me,  and 
Capt.  Haggerty.  I  think  Durfee's  cap  lay  near  him.  I  saw  the  body 
of  Durfee  afterwards,  in  Buffalo;  he  was  laid  out  at  Baldy's.  Where 
Durfee  lay  I  should  think  it  would  be  sharp  shooting  to  reach  him 
with  a  shot  from  the  tavern.  I  went  on  board  the  Caroline,  after  she 
was  tied  up  that  night,  with  Durfee.  I  did  not  see  any  arms  on 
board  the  Caroline.  Fields,  who  keeps  the  public  house,  is  my 
brother-in-law,  and  I  am  much  at  home  there.  During  the  time  the 
boat  was  attacked,  we  feared  the  house  would  be  attacked  also,  and 
we  looked  for  arms,  but  could  only  find  one  musket  about  the  pre- 
mises. When  the  row  boats  cast  off  from  the  Caroline,  they  went  in 
the  direction  of  "  Horner's  Island'*  and  Chippewa.  The  planks  of  the 
floor  of  the  warehouse  lay  loose.     It  was  not  used  a  great  deal. 

Cross-examined  by  Mr.  Spencer. — I  resided  at  Buffalo  at  that  time, 
I  was  then  at  Schlosser  only  for  the  night.  I  assisted  my  brother-in- 
law  in  the  Inn.  I  was  there  frequently  for  two  or  three  days  at  a 
time.  I  was  not  there  when  the  party  took  possession  of  Navy 
Island,  which  was  about  the  17th  or  18th  of  December.  From  that 
time  to  the  29th,  I  cannot  say  how  many  days  I  spent  there.  I  was 
there  three  days  at  a  time.  There  were  arrivals  from  Buffalo,  with 
what,  I  cannot  say  ;  they  crossed  over  to  the  Island. 

The  Attorney  General  thought  the  Counsel  was  traveling  too  far 
in  his  cross-examination,  when  he  inquired  what  other  boats  car- 
ried. 

Judge  Gridley  said  it  was  desirable  to  be  as  brief  as  possible,  and 
to  ask  no  more  than  was  necetisary  to  give  the  Jury  a  history  of  the 
the  transaction. 

Mr.  Spencer  assented,  and  the  examination  was  resumed. 

Witness — I  saw  a  piece  of  ordnance  go  over  in  a  scow  boat,  and  I 
saw  armed  men  go  over.  I  was  on  the  island  the  day  the  Caroline 
was  destroyed.  The  musket  found  a*  Field's  tavern  on  that  night, 
was  discharged  once  by  Captain  Keeler.  He  ran  out  in  the  road  and 
fired  it  off.  I  did  not  see  which  Avay  the  gun  was  pointed.  After 
the  Caroline  was  turned  loose  she  grounded  and  remained  so  until 
she  burned  near  the  water's  edge.  Tlie  stream  there  is  5^  knots.  The 


-^. 


MWI 


currei 
knots 

By 

By 

Carol! 

By 

the  ic 
out ; 
passei 
was  gi 
that  w 
not  gc 
ways ; 
passei 
was  tc 
Niivy 
Islaudi 


Mcleod's  trial. 


53 


et  between 
)ckiiijT  had 
e,  and  it  is 

rho  said  the 
^wn  to  the 
had  known 
se  after  the 
tes  after — 
e  raih'oad, 
k,  between 
urned  him 
s  with  me, 
ately  after, 
as  shot  in 
h  me,  and 
w  the  body 
^'s.  Where 
reach  him 
R,  after  she 
r  arms  on 
se,  is  my 
3  time  the 
[  also,  and 
t  the  pre- 
ey  went  in 
inks  of  the 
deal. 

:  that  time, 

>rother-in- 

days   at  a 

of  Navy 

rom  that 

!.     I  was 

falo,   with 

ig  too  far 
)oats  car- 


sible,  and 
)ry  of  the 


oat,  and  I 
Caroline 

at  night, 
road  and 

I.  After 
so  until 

lots.  The 


3 


i 


current  on  the  Canada  side  is  6,  and  on  the  American  side  about  ;") 
knots. 

By  a  Juror. — I  saw  Durfce  after  the  gun  was  fired  from  the  house. 

By  Judge  GiiiDLEY. — The  gun  was  fired  while  they  were  casting  the 
Caroline  loose. 

By  Mr.  SrENCER. — I  helped  to  get  the  Caroline  out  at  Buffalo,  from 
the  ice  ;  I  do  not  recollect  how  many  were  engaged  in  cutting  her 
out ;  I  supposed  she  was  to  run  between  Bufliilo  and  Schlosser  with 
passengers  ;  there  was  a  good  deal  of  excitement  and  passing  there  ;  I 
was  going  down  to  my  brother's  that  evening  or  ,  the  next  day,  and 
that  was  the  reason  I  assisted  ;  I  was  not  engaged  by  any  one  ;  I  did 
not  go  by  the  boat,  but  by  the  railroad,  which  ran  twice  a  day  both 
ways ;  1  have  seen  limes  when  the  railroad  could  not  take  all  the 
passengers  ;  the  curs  ran  near  Field's  tavern  ;  I  supposed  the  boat 
was  to  carry  passengers  ;  I  did  not  know  that  she  was  going  to 
Navy  Island  nor  that  she  was  to  promote  the  interests  of  the  Navy 
Islanders. 

By  Mr.  Jenkixs. — The  man  who  fired  the  gun  was  three  or  four 
rods  below  the  main  railroad  track. 

By  Mr.  Hawley. — The  railroad  employs  horse-power.  There  have 
been  two  boats  on,  the  last  season,  and  there  is  one  now;  there  was 
a  horse  express  at  the  time  from  Schlosser  to  Buffalo;  the  people 
who  went  there  went  from  curiosity  ;  there  were  all  sorts  of  people 
there  ;  Mr.  Field  was  out  of  health,  and  I  stayed  two  or  three  days  at 
a  time  to  help  him. 

By  Mr.  Spencer. — He  had  a  great  run  of  custom  then.  The  ex- 
press, I  suppose,  was  for  the  press.  An  invasion  of  the  Island  was 
expected  from  Canada,  and  they  wanted  to  get  information.  I  did 
not  understand  that  there  was  to  be  an  invasion  of  Canada  from  the 
island.  They  were  not  strong  enough.  The  express  ran  from  the 
time  the  Navy  Islanders  took  possession  of  the  Island  until  the  Caro- 
line was  destroyed,  once  a  day  I  believe. 

The  Attorney  General  here  addressed  the  Court,  and  said,  that 
the  Counsel  for  the  prisoner  was  going  into  irrelevant  inquiries,  un- 
less he  intended  to  set  it  up  as  a  matter  of  defence ;  and,  in  that 
case,  it  would  be  well  for  the  Court  at  once  to  decide,  that  the  cir- 
cumstances now  sought  to  be  brought  out  in  evidence  could  con- 
stitute no  defence  whatever. 

Judge  Gridley  said,  that  the  particular  inquiries  which  were  now 
made  by  the  prisoner's  Counsel,  had  grown  out  of  the  direct  exam- 
ination. But  the  Court  thought  that  the  details  of  this  part  of  the 
case  should  be  given  with  as  little  delay  as  possible,  as  they  could 
constitute  no  defence.  They  were  but  the  historical  parts  of  the 
case,  and  necessary  only  so  far  as  to  render  the  testimony  intelligi- 
ble to  the  jury.  But,  except  for  that  purpose,  they  had  no  bearing  on 
the  case. 

The  Attorney  General  again  objected  to  this  mode  of  cross-exa- 
mmation . 

The  Court  intimated  again  that  the  examination  should  be  brief, 
but  as  the  subject  alluded  to  was  part  of  the  examination  in  chief, 
and  a  part  of  the  history  of  the  drama,  it  was  admissible. 


i  .if 
1 '% 


'!-     t 


\h  ^,lf•. 


1 


( 


'  -    r  t 


HI, 


•Jh 


54 


GOULD  S    REPORTER. 


I 


Mr.  Spencer  said  he  hnd  finished,  but  nevertheless  he  should  insist 
upon  having  out  the  wliolc  truth  of  the  matter. 

James  Field — Examined  by  Mr.  H7\wley — I  live  at  Schlossev,  and 
lived  there  in  December,  1837.  I  kept  the  public  house  there.  I 
recollect  the  night  of  the  destruction  of  the  Caroline.  I  got  up;  I 
saw  Durfec  about  one  o'clock  that  morning  ;  he  was  lying  on  the 
wharf  dead  ;  he  lay  with  his  head  from  the  water,  partly  on  his  face  ; 
I  saw  the  wounds  ;  he  appeared  to  have  a  ball  shot  through  his  head  ; 
it  appeared  to  have  gone  in  at  the  back,  and  come  out  in  front ;  the 
orifice  was  small  behind,  and  bursted  out  in  front  j  I  should  suppose 
he  fell  where  he  'ay  ;  he  lay  about  four  feet  on  the  dock  from 
the  water ;  there  was  blood  near  where  he  lay ;  there  was  not  a 
great  deal  of  blood,  but  some  might  have  run  through  the  plank ; 
1  saw  his  cap ;  it  lay  partly  right  off  from  his  ear,  by  his  head.  The 
perforations  in  that  were  the  same  as  in  his  head — one  behind,  and 
the  other  before.  I  thought  the  cap  was  singed.  I  kept  it  a  year. 
The  singe  was  at  the  back,  about  the  small  hole.  Finally,  I  gave  the 
cap  to  a  man  who  called  himself  his  brother.  I  was  not  on  board  the 
Caroline  that  day  or  night.  Tlie  people  in  my  house  that  night  were 
not  armed.  There  was  one  gun  in  the  house,  and  that  was  all.  That 
gun  was  fired.  The  man  wlio  fired  it  stood  about  ten  rods  from  the 
house ;  he  fired  south,  or  towards  the  river.  He  fired  at  the  men 
who  Avere  taking  the  boat  ofT;  the  boat  was  then  in  the  stream,  but 
she  had  not  got  to  the  foot  of  the  Island  by  30  rods  ;  they  were  about 
10  rods  below  the  warehouse.  A  line  from  where  the  man  stood  to 
the  men  who  were  towing  the  boat,  would  go  20  rods  below  where 
Durfee  was. 

Question  by  the  Court — How  can  that  be  if  the  boat  was  only  ten 
or  fifteen  rods  below  the  storehouse,  and  the  gun  was  fired  from  a 
point  between  the  public  house  and  the  river  / 

Answer. — Upon  reflection,  the  line  would  pass  five  or  six  rods  be- 
low where  Durfee  was  lying  ;  the  gun  was  fired  at  the  boat ;  I  remon- 
strated against  the  gun  being  fired,  telling  the  man  it  'might  aggra- 
vate them,  and  make  them  attack  the  house  ;  don't  know  the  appear- 
ance a  shot  wound  would  prer-icnt. 

By  Mr.  Spenckr. — 1  lived  at  Schlosser  Avhen  Navy  Island  was  in- 
vaded. It  was  a  week  or  so  before  the  boat  was  burned.  The  in- 
vaders, I  understood,  went  from  Grand  Island.  There  was  a  good 
deal  of  passing  and  re-passing  after  the  Island  was  invaded.  The 
land  where  my  house  stands  is  about  level.  At  that  time  they  were 
carrying  men  and  munitions  of  war  to  Navy  Island  daily.  There 
was  a  great  assemblage  at  Schlosser  daily  and  nightly.  Provisions 
were  brought  in  on  wagons  and  railroad  cars.  There  were  a  good 
many  pieces  of  artillery  taken  over.  I  cannot  tell  how  many.  I  had 
as  much  business  as  I  could  attend  to,  and  I  saw  only  three.  I  saw 
a  man  go  over  occasionally,  with  a  gun  on  his  shoulder. 

The  Attorney  General,  again  objected  to  the  cross-examination. 

The  Court  thought  the  nature  of  this  expedition  should  be  brought 
out. 

The  Attorney  General  said  he  conceded  that  there  was  an  expe- 
dition and  great  excitement,  but  it  had  nothing  to  do  with  the  case 


:^l 


■^' 


Mcleod's  trial. 


•oo 


should  insist 

;hlossev,  and 
se  there.  I 
I  got  up;  I 
lying  on  the 
on  his  face ; 
gh  his  head ; 
n  front ;  the 
luld  suppose 

dock  from 
!  was  not   a 

the  plank ; 

head.  The 
behind,  and 
it  it  a  year. 
'■,  I  gave  the 
)n  board  the 
t  night  were 
IS  all.  That 
ids  from  the 

at  the  men 
stream,  but 

were  about 
an  stood  to 
elow  where 

/^as  only  ten 
ired  from  a 

six  rods  be- 
;  I  remon- 
ight  aggra- 
the  appear- 
and was  in- 
The  in- 
vas  a  ofood 
aded.  "The 
!  they  were 
ily.  There 
Provisions 
ere  a  good 
iny.  I  had 
r>ee.     I  saw 

mination. 
be  brought 

IS  an  expe- 
th  the  case 


here.     Before  another  forum  Mr.  Field's  testimony  might  be  neces- 
sary. 

Mr.  Spkncer. — If  you  concede  that  it  is  all  we  require. 
The  Court  thought  the  nature  of  the  proceedings  should  be  made 
known. 

Examination  continued. — I  saw  beef  and  other  provisions  carried 
over  for  the  Navy  Islanders  ;  the  burn  which  1  saw  on  the  cap  was 
round  the  hole  where  I  supposed  the  ball  had  gone  in.  The  hole 
was  singed  round,  about  as  big  as  a  quarter  of  a  dollar.  The  cap 
was  a  snuft' color  knit  or  woollen  cap  ;  it  was  a  kind  of  plush.  The 
body  was  not  moved  until  the  next  morning ;  it  was  turned  over 
when  I  then  saw  it.  I  was  about  ten  or  twelve  feet  north,  or  back  of 
the  man  when  he  fired  ;  he  fired  ruther  at  random. 

By  Mr.  Hawlev. — There  were  militia  ordered  out  about  my  place  ; 
the  militia  were  not  ordered  out  until  after  the  burning  of  the  Caro- 
line ;  there  were  marshals  there  to  preserve  neutrality.  When  I 
spoke  of  provisions  and  other  things  being  carried  over  to  Navy 
Island,  I  alluded  to  the  time  both  before  and  after  the  burning  of  the 
Caroline. 

By  the  Court. — The  beef,  hogs,  flour,  and  cannon  that  went  over, 
were  some  before  the  burning  and  some  after  ;  one  cannon  and  flour 
went  over  before  ;  two  cannon  and  other  things  after. 

By  Mr.  Spencer. — One  cannon  went  over  about  a  week  before  the 
lining;  I  was  on  the  Island  then, 
.'he  Attorney  General  protested  against  the  prosecution  of  this 
inquiry  further.     It  was  admitted  on  the  part  of  the  prosecution,  and 
was  not  necessary  to  this  cause. 

Judge  Gridley  said  :  I  understand  Mr.  Spencer  offers  the  testimo- 
ny as  part  of  the  transaction,  and  insists  upon  his  right  to  do  so  I 
do  not  think  those  parts  of  the  transaction  are  material.  They  are 
merely  material  in  order  to  show  the  jury  what  was  the  character  of 
the  transactions  amongst  which  the  Caroline  was  burned.  It  now 
appears  that  there  was  an  armed  force  at  Chippewa,  that  there  vvas  a 
hostile  force  on  Navy  Island,  and  that  this  force  was  recruited  by 
men  and  furnished  with  arms  and  provisions  from  this  side,  and  that 
the  Caroline  was  employed  in  transmitting  them.  It  seems  to  me, 
that  the  minute  details  of  those  circumstances  cannot  be  very  mate- 
rial. But  if  Mr.  Spencer  desires  it,  I  will  note  that  he  offers  to  prove 
them.  « 

Mr.  Specenr  said  that  he  intended,  in  a  more  formal  way,  to  pre- 
sent he  question  to  the  Court ;  he  intended  to  show  the  strength 
and  force  on  Navy  Island  ;  he  understood  that  there  were  twenty  or 
thirty  pieces  of  artill^y  on  it,  and  he  supposed  that  this  witness 
knew  something  about-  it.  It  was  a  little  remarkable  that  so  many 
persons  should  get  on  and  off  it,  without  knowing  any  thing  about  it. 
The  Attorney  General  took  wide  ground  in  his  opening,  and  if  he 
expected  to  confine  the  examination  to  the  single  fact  that  five  boats 
came  over,  he  was  mistaken. 

Judge  Gridley  said  if  Mr.  Spencer  desired  it,  he  would  make  a  note, 
that  minute  evidence  was  offered  on  this  point  and  overruled,  so  that 
advantage  could  be  taken  of  it  hereafter. 


!*■  "PiJi 

m 


56 


GOULD  S   REPORTER. 


i 


Mr.  Spencer  said  at  a  future  period  of  the  trial  he  intended  to  sub- 
mit some  questions  to  the  Court  respecting  the  strength  of  the  force 
on  Navy  Island,  the  batteries  there,  &c. 

The  examination  was  then  continued. — There  was  a  military  force 
on  the  Canada  shore,  and  cannonading  from  there  and  the  Island. 

J.  V.  Hftfrfrcrty — Examined  by  Mr.  Hawley — I  reside  at  Buffalo, 
and  resided  there  in  December,  1S37 ;  I  was  on  board  the  Caroline 
when  the  attack  was  made  upon  her  ;  I  was  in  her  When  the  watch 
called  us  ;  I  am  a  sailor  ;  I  sailed  a  vessel  as  master  that  year  ;  I  was 
only  a  passenger  on  board  the  Caroline  ;  I  did  not  pay  anything  nor 
expect  any  pay ;  it  is  a  custom  among  sailor  folks  not  to  pay  on  any 
boat  on  which  they  may  travel;  they  are  then  called  "dead  heads," 
but  they  are  required  to  assist  on  a  pinch;  William  Kennedy  was  on 
watch,  and  he  put  his  head  in  the  ladies'  cabin,  on  deck,  and  said  a 
boat  was  coming ;  we  did  not  believe  him  at  first,  and  nobody  got 
up  ;  he  went  away  for  about  a  minute  and  then  came  back,  kicked  at 
the  door,  with  an  oath,  and  said  Ave  had  better  get  up,  or  we  should 
be  burned  up  very  soon  ;  two  men  then  got  up  with  me ;  I  went  to 
the  starboard  stern  gangway,  next  to  the  river,  abaft  the  wheel 
house  ;  I  saw  a  boat  full  of  men — ten  or  twelve  I  should  think  ;  they 
were  armed ;  one  boat  had  a  man  standing  up  in  her  ;  she  stood  with 
her  head  up  stream,  as  the  steamboat  did  ;  I  and  the  two  men  stood 
at  the  rail  next  the  river,  and  three  pistols  were  fired  at  us;  one  of 
the  men  fell ;  I  do  not  know  who  he  was  ;  Mr.  Leonard,  one  of  the 
two  men,  started  and  went  into  the  cabin ;  I  started  to  the  gangway 
on  the  larboard  side  to  go  ashore,  but  I  met  men  with  swords  and 
cutlasses,  and  could  not  get  ashore  ;  they  were  getting  out  of  a  boat 
under  the  guard  of  the  steamboat ;  a;  \  some  of  them  were  on  the 
wharf,  and  some  of  them  were  on  the  steamboat ;  I  went  back  to  the 
ladies'  cabin  to  get  off  at  the  fore  end  of  the  boat ;  when  I  got  to  the 
starboard  side,  I  saw  a  man  lie  there  ;  the  men  were  then  in  the  act 
of  getting  on  deck  ;  I  went  forward,  and  when  I  got  on  the  forecas- 
tle, I  heard  pistols  fired  and  clashing  of  swords;  I  imagined  the  par- 
ties were  fighting  themselves,  and  I  got  a  chance  to  go  ashore 
through  the  main  building  of  the  warehouse ;  I  saw  Durfee  three 
quarters  of  an  hour  after  ;  he  lay  on  his  face  when  I  first  saw  him  ; 
the  boats  then  had  gone  ;  I  had  not  been  asleep  when  the  attack  was 
made  ;  I  had  not  been  aboard  more  than  half  an  hour  ;  I  had  been  to 
the  Falls,  and  could  get  no  lodgings ;  -there  were  fi^ve  others  with 
me  ;  we  went  on  board  the  boat  to  sleep,  and  lay  on  mattresses  ;  I 
had  a  nocket  pistol  which  was  not  loaded  ;  I  saw  no  other  arms;  I 
heard  no  firearms  discharged  from  on  board,  before  I  went  to  the 
gangway  ;  I  think  there  could  not  have  been  any  pistols  discharged 
without  my  hearing  them ;  I  don't  know  that  I  heard  more  than  one 
man  speak  before  1  left  the  boat ;  as  I  passed  the  dead  or  fallen  man, 

I  heard  one  man  say,  "  give  it  'em,  God  d n  'em."     When  I  got 

ashore  I  heard  them  cursing  among  themselves. 

Cross-examined  by  Mr.  SjI'encer  — There  was  a  light  which  hung 
m  the  gangway  that  led  from  the  ladies'  to  the  gentlemen's  cfibin. 
I  broke  the  lamp  with  a  bolt.  Somebody  cried  "  put  out  the  lights." 
There  was  a  light  forward,  and  also  in  the  cabin.     That  light  was  on 


1S( 


and 


MCLEOD  S   TRIAL. 


57 


nded  to  sub- 
of  the  force 

lilitary  force 
je  Islund. 

at  Bu/Talo, 
the  Caroline 
n  the  watch 
year ;  I  was 
inything  nor 
pay  on  any 
lead  heads," 
ledy  was  on 
,  and  said  a 
nobody  got 
k,  kicked  at 
r  we  should 
!  J  I  went  to 
t  the  wheel 
think ;  they 
!  stood  with 
)  men  stood 
us;  one  of 
,  one  of  the 
le  gangway 
swords  and 
lut  of  a  boat 
ere  on  the 
back  to  the 
I  got  to  the 
(i  in  the  act 
he  forecas- 
ted the  par- 
go  ashore 
urfee  three 
saw  him  ; 
attack  was 
lad  been  to 
others  with 
Lttresses ;  I 
ler  arms;  I 
ivent  to  the 
discharged 
e  than  one 
fallen  man, 
iVhen  I  got 

/hich  hung 
en's  cabin. 
;he  lights." 
isfht  was  on 


4 
I 


the  for'castle,  and  I  believe  it  was  put  out  too.  The  ladies'cabin  was 
on  deck  ;  the  gentlemen's  cabin  was  below.  I  got  ashore  as  soon 
as  I  could.  The  boats  had  not  got  fast  to  the  steamboat.  I  saw  five 
of  them.  Durfee  lay  ten  or  twelve  feet  from  the  edge  of  the  wharf; 
his  head  was  farther  off.  I  did  not  help  to  get  the  boat  out  at  Buffalo. 
There  was  another  boat  came  down  after  the  Caroline  was  destroy- 
ed ;  she  was  called  the  Barcelona, 

Henry  Emmons —examined  by  Mr.  Jenkins — 1  lived  at  Schlosser, 
when  the  Caroline  was  destroyed;  I  was  awoke  by  a  noise  in  the 
house,  and  an  alarm  that  the  boat  was  attacked.  I  j^ot  down  into  the 
road  leading  to  the  Falls.  I  heard  a  loud  noise:  there  was  hallooing, 
and  guns  were  fired.  I  could  not  hear  what  was  said  so  as  to  under- 
stand it.  I  remained  there  till  the  boat  was  got  loose  and  set  fire  to  ; 
she  was  towed  off  fifteen  or  twenty  rods  from  the  wharf,  and  ten  rods 
down  the  stream.  They  left  her,  gave  three  cheers,  and  rowed  up 
towards  the  wharf.  We  thought  they  were  coining  to  burn  the 
warehouse,  but  they  did  not.  When  they  had  gone,  we  went  down 
with  a  light,  and  found  Durfee.  He  was  eight  or  ten  feet  from  the 
boat,  in  a  direction  from  the  gangway,  on  the  railroad  which  runs  to 
the  edge  of  the  wharf.  I  saw  his  cap  ;  it  is  called  a  Canadian  cap.  It 
is  of  a  dark  color.  There  was  not  a  great  deal  of  blood  there.  There 
was  one  gun  fired  from  the  road.  I  was  two  or  three  rods  from 
where  the  man  stood  who  fired.  He  fired  in  the  direction  of  the 
steamboat  Caroline.  The  man  was  thirty  or  forty  rods  from  the 
warehouse.  The  shot  could  not  have  gone  within  seven  or  eight 
rods  of  the  warehouse.     I  saw  no  arms  there  more  than  his  gun. 

Cross-examined  by  Mr.  Spencer. — There  was  a  Captain  Lawton, 
who  formerly  run  a  steamboat,  who  had  two  pistols.  I  was  looking 
at  the  Caroline  ;  and  the  man  who  fired  went  two  or  three  rods  from 
me.  The  steamboat  was  then  burning.  I  was  looking  at  the  man 
with  the  gun ;  there  was  a  remark  made,  that  if  we  had  arms  we 
could  kill  some  of  them  without  much  danger.  That  attracted  my 
attention  to  the  man  who  fired. 

John  Hat(er, — (examined  by  Mr.  Hawley) — I  live  in  Niagara  Coun- 
ty. I  was  at  Mr.  Field's,  at  Schlosser,  on  the  night  the  Caroline  was 
destroyed.  The  gun  was  loaded  with  powder  merely,  and  was  fired 
to  alarm  the  company  that  boarded  the  Caroline.  I  did  not  fire  it.  I 
think  there  was  no  other  gun  fired  from  the  house. 

By  the  Attokney  General — I  was  on  board  the  Caroline  that  night, 
and  did  not  notice  that  she  was  armed.  I  was  aboard  about  11  o'clock 
at  night. 

Cross-examined  by  Mr.  Spencer. — I  lived  at  that  time  at  Lockport ; 
I  happened  to  be  at  Schlosser;  out  of  curiosity  mostly;  were  many 
there  at  that  time  ;  I  had  not  been  to  bed  ;  I  had  been  to  the  Falls 
with  some  gentlemen  who  requested  me  to  walk  down  with  them  ;  we 
returned  about  eleven  o'clock  ;  the  distance  from  Field's  is  about  three 
miles ;  I  had  no  particular  business  there,  and  went  to  Field's  to  get 
lodging ;  there  was  no  chance  to  get  any  there,  and  I  went  to  the 
boat,  but  the  berths  were  full,  and  I  returned  to  Field's  ;  the  gun  was 
loaded  in  the  kitchen  ;  a  man  brought  it  from  another  room,  and  Mrs. 
Field  brought  the  powder  j  I  stood  about  five  feet  from  the  man  who 

8 


li  ■ 


r-M,. 


>i  ■ 


:ii 


if -I  t 


'■■It 


5S 


GOULD  8    REPORTER. 


''\l 


Si; 


loaded  it ;  I  might  have  drank  some  that  night ;  it  is  very  natural  for 
a  man  to  drink  a  little,  but  I  was  sober ;  1  think  I  stated  the  next 
day,  that  the  gun  was  only  loaded  with  powder  ;  the  man  who  fired 
tiie  gun  loaded  it  ;  but  I  cannot  tell  who  he  was ;  1  stated  it  to  sev- 
eral persfms  at  the  Falls,  that  the  gun  was  only  loaded  with  pow- 
der, and  I  stated  it  to-day  to  Mr.  Emmons ;  I  saw  the  gun  fired ;  it 
was  fired  about  four  rods  from  Field's  house  towards  the  warehouse  ; 
I  have  stated  all  I  know  about  it,  and  I  cannot  say  whether  it  would 
not  have  answered  the  same  purpose,  if  it  had  been  fired  at  the  house, 
if  it  were  loaded  only  with  powder. 

By  the  Coukt.  — The  steamboat,  when  the  gun  was  fiicd,  was  cast 
off  and  going  down  stream  ;  but  I  can't  say  which  Avay  the  row  boats 
were  going.  The  Caroline  was  moving  down  the  river.  The  object 
of  firing  was  to  prevent  the  party  from  coming  to  the  house. 

Cross-examined. — Mr.  Emmons  did  not  tell  me  to  come  forward 
and  swear  to  the  fact  about  the  gun.  I  told  it  to  him  about  two 
hours  ago  down  by  the  canal. 

Direct  resumed. — I  was  subpoenaed  as  a  witness,  at  my  residence 
in  Niagara  County,  a  week  ago  last  Tuesday.  I  was  called  on  to 
tell  what  I  knew,  I  suppose.  I  was  subpoenaed  by  Allen  Buck,  sent 
down  by  the  District  Attorney. 

I  don't  know  that  they  told  me  or  talked  to  me  about  what  I  could 
swear.  Nothing  was  said  to  me  about  the  loading  of  the  gun,  or 
about  testifying  as  to  that  point. 

Joshua  Jl.  iS//mV//— ^examined  by  Mr.  Hawlky.  I  reside  in  Buffalo, 
and  did  in  December,  1837 ;  I  follow  steamboating  and  engineering  ; 
I  was  on  board  the  Caroline  at  the  commencement  of  the  attack  ;  I 
was  in  the  ladies'  cabin  when  the  alarm  was  given  ;  I  had  not  been 
asleep  ;  I  had  just  laid  down  on  a  row  of  mattresses,  and  the  alarm 
was,  a  boat  or  boats  are  coming  ;  I  thought  it  was  a  false  alarm  to 
get  us  out  of  our  berths  that  others  might  get  them  ;  in  about  a  min- 
ute after,  they  came  again  in  a  good  deal  of  alarm,  and  said  there 
were  boats  coming  filled  with  armed  men  ;  we  then  got  out ;  I  went 
to  the  starboard  gangway  and  looked  over ;  there  was  considerable 
of  a  rumpus  ;  I  went  aft  and  saw  people  getting  onboard  from  a  sm.ill 
boat,  on  the  river  side  there  was  a  gun  fired,  and  some  one  fell  by  my 
side,  who  apparently  came  from  forward  aft ;  I  thought  he  fell  from 
a  shot ;  I  was  somewhat  frightened  at  the  time  ;  I  went  across  the 
boat  and  went  aft  not  very  slow ;  I  was  not  armed,  nor  were  any  of 
the  men  to  my  knowledge ;  I  think  there  were  no  fire-arms  dis- 
charged until  after  the  alarm,  and  then  I  think  there  was  one  ;  when 
I  went  aft  I  did  not  see  one  of  the  assailants'  boats  imder  the  guard 
of  the  steamboat. 

Cross-examined  by  Mr.  Spencer — I  went  on  board  the  boat  at  Black 
Rock  dam  the  morning  before  ;  I  had  not  been  down  before,  that 
winter,  to  my  recollection  ;  I  do  not  know  whether  the  person  who 
fell  was  one  of  the  assailants  or  pf  the  persons  on  board ;  there  was 
a  good  deal  of  clashing. 

By  Mr.  Hawley — I  was  one  of  the  "  dead  heads"  on  that  occasion. 
James  H.  King — examined  by  the  Attorney  General — In  Decem- 
ber, 1837, 1  resided  in  Buffalo  ;  I  was  the  mate  of  the  Caroline  steam- 


MCLEOD  S   TRIAT. 


69 


natural  for 

the  next 

wlio  fired 

it  to  sev- 

Avith  pow- 

n  fired ;  it 

'^arehouse ; 

it  would 

the  house, 

,  was  cast 
row  boats 
The  object 
ie. 

c  forward 
ibout  two 

residence 
led  on  to 
Juck,  sent 

at  I  could 
i  gun,  or 

n  Buflgilo, 
ineering ; 
attack ;  I 

not  been 
the  alarm 

alarm  to 
)ut  a  min- 
iaid  there 
t ;  I  went 
siderable 
Ti  a  small 
ell  by  my 

fell  from 
cross  the 
e  any  of 
rms  dis- 
e  ;  when 
he  guard 

at  Black 
ore,  that 
son  who 
lere  was 

ccasion. 
Decem- 
e  steam- 


boat ;  I  was  on  board  on  the  2rtth  December,  1837  ;  I  remember  t'c 
attack  made  on  her  that  nigh  ;  I  retired  to  the  ladies'  cabin  about  S 
o'clock,  and  was  asleep  when  the  alarm  was  given  ;  I  was  awoke  by 
the  firing  of  guns  and  a  noise  on  deck  ;  I  jrot  up,  put  on  my  boots 
and  hat,  threw  my  overcoat  on  mj'^  arm  and  went  out,  but  armod  men 
shoved  me  back  to  the  l)ack  part  of  the  cabin,  where  they  made  me 
lie  down  on  the  mattresses,  and  they  beat  me  and  stamped  upon  me ; 
they  beat  me  with  swords  and  cut  and  mani^led  me  a  good  deal  ; 
they  asked  me  wlicre  1  came  from,  and  a  good  deal ;  they  cut  my 
arm  as  I  "  fended"  off  the  blow  with  it ;  there  were  five  or  six  struck 
me  ;  the  place  was  not  high  enough  for  them  to  use  their  swords 
mucii,  and  my  coat  saved  my  arm  some ;  there  was  noise  and  con- 
fusion and  low  talking  ;  as  1  was  lying  on  the  mattresses,  after  I 
was  wounded,  one  man  came  in  and  said,  "  Koll  over,  you  damned 
yankee  son  of  a  bitch,  and  give  me  these  mattresses  ;"  1  rolled  over 
and  he  threw  the  mattresses  through  the  window  ;  they  took  a  large 
corn  basket,  set  the  lamp  in  it,  and  put  the  cross  bars  from  the  win- 
dow upon  it,  and  set  fire  to  them,  which  drove  iisout.  As  I  lay  there 
one  said,  "  What  shall  we  do  with  this  man — kill  him  1"  "  No,"  said 
the  other,  "  take  him  prisoner  ;"  a  man  then  came  in  who  was  an  of- 
ficer and  said,  "  Oh,  Ave  want  no  prisoners  ;  he's  pretty  nearly  dead, 
let  him  go  ashore" — I  was  then  very  weak  ;  I  made  towards  the  sen- 
try, but  he  would  not  let  me  pass  ;  I  spoke  again  to  the  officer,  and 
told  him  the  sentry  would  not  let  me  pass,  and  he  sent  a  man  to  pass 
me ;  I  did  not  get  a  very  good  sight  of  tiiat  officer ;  I  do  not  know 
that  I  could  recognize  him  ;  1  have  not  seen  any  man  that  I  suppos- 
ed might  be  that  man  since;  I  went  ashore;  I  staggered  along  the 
railroad  track  and  my  fiiends  met  me — Mr.  Wells,  i  believe,  was  one 
— and  they  took  me  into  the  house  ;  I  had  a  serious  wound  on  the 
left  arm  and  other  very  serious  ^uts  ;  I  was  not  aware  of  arms  being 
on  board  that  night,  nor  armed  men. 

Cross-examined  by  Mr.  Spk.nceu. — I  was  in  the  ladies'  cabin  ;  there 
was  a  light  burning  in  it  all  that  time  ;  all  the  others  escaped  when  I 
was  in  the  cabin,  as  1  have  mentioned  ;  I  do  not  know  that  the  basket 
was  the  only  fire  made  on  board  ;  all  mattresses  and  the  bedding 
were  thrown  out  of  the  cabin  window;  I  should  think  there  were 
twenty  of  the  attacking  party  in  the  ladies'  cabin  ;  I  went  on  shore  ; 
the  boat  then  had  moved  from  her  moorings  ;  I  did  not  see  any  one 
go  ashore  after  me  ;  there  was  a  little  boy  in  the  cabin,  and  I  have 
the  impression  he  was  there  when  I  left  ;  he  was  1*2  or  l-i  years  of 
age;  I  helped  to  get  the  boat  out  of  Buffalo  Creek. 

By  the  Attokmiy  Genkual — I  was  not  acquainted  with  the  prisoner 
at  the  bar  previous  to  that  time. 

It  was  now  1  o'clock,  and  the  Court  took  a  recess  for  dinner;  the 
jurors,  the  prisoner,  the  bar  and  the  reporters,  the  Court  and  the  au- 
dience, retired  in  the  usual  order,  one  class  retaining  their  seats  until 
the  other  had  retired. 

Afternoon  Session. 

At  2  o'clock.  Judge  Gridley  again  took  his  seat  on  the  bench,  and 
the  trial  proceeded. 

Gilman  Appleby,  examined  by  Mr.  Woods. — I  reside  in  BufTalo, 


P,i 


i\  ••  I 


i  ', 


H 


(  \i 


,.j:    , 


'    '  I.; ', 


60 


GOULD  S    REPORTER. 


and  have  lived  there  more  than  six  years.  I  was  on  board  of  the 
Caroline  when  she  vvns  attacked.  I  took  charge  of  her  at  the  request 
of  the  owner,  Mr.  Wells.  I  went  to  bed  on  board  of  her  that  night  ; 
1  was  awoke  about  1")  or  20  minutes  after  12;  1  was  alarmed  by 
one  of  the  watch  ;  he  came  to  the  companion  way,  and  said  there 
were  armed  boats  approaching.  I  was  in  a  berth  in  the  lower  or 
gentlemen's  cabin.  1  got  up  as  soon  as  I  could  ;  I  got  my  boots  on 
and  my  vest ;  I  had  my  pantaloons  on  ;  I  went  to  the  companion  way 
with  my  coat  on  my  arm  ;  the  companion  way  is  a  very  narrow  pas- 
sage ;  one  side,  next  to  the  engine,  was  not  .sealed  up;  the  stairs  are 
winding  and  very  narrow;  1  attempted  to  ascend  the  stairs;  Captain 
Harding,  was  ahead  of  me,  and  perhaps  some  others;  a  scuffle  took 
place  between  him  and  some  one  on  deck,  and  the  door  was  closed, 
perhaps  by  the  scuflling,  ;xnd  shut  me  in  ;  I  remained  on  the  stairs 
two  or  three  minutes,  and  heard  such  expressions  as  "  show  the 
damned  Yankees,"  or  "  the  damned  Yankee  rebels  no  quarter."  There 
was  firing  and  scuffling  ;  it  was  one  general  noise  and  confusion.  I 
again  got  to  the  door  and  had  got  it  open  about  a  foot ;  a  man  sprang 
at  it  and  said  "  down,"  and  the  door  was  shut  in  a  twinkling ;  he 
struck  at  me  with  a  sword  which  cut  my  vest ;  it  went  down  to  my 
pantaloons  and  struck  a  metallic  button  which  turned  the  sword  off. 
1  sallied  back  and  went  below ;  there  were  a  number  behind  me  ;  I 
had  the  lights  in  the  cabin  blown  out,  for  I  expected  they  would  come 
to  search  for  us  when  they  had  done  all  they  wanted  to  on  deck.  I  re- 
collected that  I  could  get  through  the  engine  to  the  deck,  and  I  crept 
through  to  the  upper  or  promenade  deck.  There  was  no  one  on  the 
upper  deck,  but  there  was  considerable  noise  on  the  main  deck.  I 
got  from  the  deck  to  the  warehouse.  I  hung  on  to  it  some  minutes. 
When  there,  I  heard  one  say,  "  God  damn  them,  what  has  become  of 
the  six-pounder  that  was  there  before  night."  In  a  very  few  min- 
utes I  heard  some  one  say  from  near  the  warehouse  door,  "  Bring  a 
light,  God  damn  them,  we  may  find  some  of  the  damned  Yankees 
here."  There  was  no  floor  nor  any  thing  but  sleepers;  as  they 
searched  there,  I  thought  that  I  was  discovered,  and  1  jumped  from 
where  1  stood  into  the  water.  I  went  down  and  was  rather  strangled ; 
as  I  came  up  some  one  struck  me  on  the  bjick.  I  got  under  the  pier, 
and  afterwards  crept  out  and  made  the  best  of  my  way  to  the  tavern  ; 
I  thought  at  the  time  that  I  was  struck  with  an  oar  or  a  boarding 
pike ;  saw  the  man  who  gave  me  the  blow  with  the  sword  ;  there 
was  a  globe  lamp  hung  at  the  head  of  the  companion  way ;  it 
hung  just  so  a  man  could  clear  it  as  he  got  up ;  I  then  sup- 
posed that  man  to  be  the  prisoner,  Alexander  McLeod  ;  I  had  had  an 
introduction  to  him  at  the  Eagle  tavern  in  Buflalo  a  week  or  ten 
days  before  ;  I  thought  then  I  knew  him ;  I  was  examined  the  day 
after  this  transaction  at  Schlosser  before  a  magistrate  ;  my  attention 
was  called  to  this  subject  the  next  day,  and  1  told  every  one,  I  sup- 
posed it  to  be  Mr.  McLeod,  but  it  was  done  very  quick,  and  I  might 
possibly  have  been  mistaken  about  it ;  I  went  to  Field's  tavern ;  I 
afterwards  saw  Durfee  lying  on  his  face,  dead  ;  I  saw  where  he  was 
wounded ;  the  ball  passed  through  his  head  from  behind,  and  came 
out  in  front ;  the  brains  were  blown  out  j  there  were  blood  and  brains 


d  ii 


Mcleod's  trial. 


<n 


board  of  the 
it  tlic  ref)iiest 
;r  that  ninrht  ; 
s  alarmed  by 
tid  said  there 
the  lower  or 
my  boots  on 
rnpanion  way 
r  narrow  pas- 
the  stairs  are 
lirs;  Captain 
I  scuffle  took 
f  was  closed, 
on  the  stairs 
s  "  show  the 
rter."  There 
!onfusion.     I 
I  man  sprang 
vinkling;  he 
down  to  my 
le  sword  off. 
ehind  me  j  I 
would  come 
1  deck.   I re- 
,  and  I  crept 
)  one  on  the 
ain  deck.     I 
me  minutes. 
s  become  of 
y  few  min-   • 
',  "  Bring  a 
led  Yankees 
rs ;  as  they 
umped  from 
r  strangled ; 
ler  the  pier, 
the  tavern ; 
a  boarding 
rord  ;  there 
on  way ;  it 
then   sup- 
had  had  an 
iveek  or  ten 
ned  the  day 
ly  attention 
one,  1  sup- 
md  I  might 
s  tavern ;  I 
lere  he  was 
I,  and  came 
[  and  brains 


where  he  lay  ;  I  did  not  go  down  there  again  that  night ;  I  believe 
there  were  ton  of  the  crew,  and  twenty-three  others  on  board  the 
Caroline  that  night  ;  none  of  them  were  armed  ;  I  heard  the  report 
of  ii  gun  immediately  after  the  alarm  was  given,  and  before  I  got  out. 
Before  I  got  out  i  heard  the  report  of  other  guns;  some  five  or  six 
I  should  think,  but  there  was  a  great  noise.  There  was  a  boy  on 
board  called  "  Little  Billy."  He  had  been  with  me  on  the  Constitu- 
iiu/i  on  the  lake,  as  a  kind  of  second  porter  ;  he  was  twelve  or  four- 
teen years  of  age,  I  have  never  seen  or  heard  of  him  since. 

Cross-examined  by  Mr.  Spencer. — We  lay  at  Navy  Island  when  I 
last  saw  the  boy.  There  was  another  boy  on  board  of  the  name  of 
Luke  Walker  ;  he  was  on  board  when  we  lay  up  for  the  night.  It 
was  said  he  was  taken  to  Canada.  I  have  seen  him  since.  Mr. 
Wells  spoke  to  me  about  running  the  boat.  I  was  to  run  from  liuf- 
falo  to  Schlosser.  I  volunteered  to  go  until  the  next  morning,  if  he 
could  get  nobody  else,  and  I  could  return  by  railroad.  I  had  had 
enough  of  it  in  the  summer.  We  did  not  take  much  from  BufTalo  or 
Schlosser.  When  I  went  below  there  was  a  bull's  eye  lamp  in  front 
of  the  ladies'  cabin,  in  the  passage  way,  and  one  forward.  The  one 
in  front  of  the  ladies'  cabin  was  a  globe  or  signal  lamp.  It  hangs 
overhead  above  the  companion  way  to  the  gentlemen's  cabin.  I 
pushed  the  door  open  about  a  foot;  outside. the  door  there  was  not 
much  light ;  I  had  not  discovered  anybody  before  I  opened  the 
door  ;  it  was  jerked  open  quick,  and  at  the  same  instant  the  sword 
was  thrust  at  me.  I  shrunk  back  pretty  quick,  and  got  into  the  cabin 
as  soon  as  I  could.  The  transaction  was  done  in  a  twinkling ;  I  did 
not  mark  the  features  of  the  man  at  that  time  ;  it  was  only  a  suppo- 
sition of  mine.     I  do  not  now  say  it  was  McLeod. 

Samuel  Drown,  examined  by  Mr.  Woods. — I  reside  at  Canandaigua, 
Ontario  county.  I  have  resided  in  Canada.  I  resided  at  Chippewa 
in  December,  1837.  I  recollect  the  time  the  Caroline  was  destroy- 
ed ;  1  was  attending  bar  for  Mr.  Philo  S.  Smith.  I  know  Mr.  Mc- 
Leod ;  I  knew  him  in  December,  1837,  and  then  had  known  him  three 
years.  1  lived  one  year  in  St.  Catherine's  and  two  years  in  Chippewa. 
McLeod  then  lived  at  Niagara,  distant  about  twelve  miles.  I  saw 
him  sometimes  once  a  week — sometimes  once  a  month.  He  was 
deputy  sheriff  of  that  district,  and  I  have  seen  him  attending  courts. 
I  saw  him  when  I  resided  at  Chippewa  ;  I  attended  two  or  three 
courts,  and  I  saw  him  at  Queenston  ;  I  saw  McLeod  at  Chippewa  on 
the  evening  that  the  Caroline  Avas.  destroyed  ;  I  saw  him  once — it 
was  after  the  Caroline  was  burned — and  where  the  rails  were  burn- 
ing ;  they  have  a  canal  cut  from  the  Niagara  river  to  the  Chippewa 
creek  ;  it  is  called  "  the  cut,"  and  it  is  about  forty  rods  long  ;  the 
Niagara  river  empties  into  the  cut ;  there  were  many  rails  burning 
there  ;  I  should  think,  judging  from  the  fences  afterwards,  there  were 
over  a  thousand  rails  burned  there  that  night ;  I  went  there  from  curi- 
osity ;  Piatt  Smith  Avas  with  me  ;  there  were  people  there  keeping 
up  the  fires ;  I  saw  two  or  three  of  the  boats  come  into  the  cut  from 
towards  Schlosser  ;  they  went  up  Chippewa  creek  and  I  followed 
them  ;  there  is  a  tow  path  between  the  road  and  the  canal ;  there  is 
a  highway  there ;  from  the  centre  of  the  road  to  the  Chippewa  creek 


»' 

U. 


4v 


,;'t'''*! 

11  ?■;., 


^:M 


h 


111 


'    I 


oe 


(iOULD'S   IlEPOUTEK. 


it  may  ho  two  or  thron  rods  ;  tliore  is  n.  road  runninc;  nlonp  llio  Nin- 
pfafii  river,  and  wlicn  it  irt'ts  to  where  the  creek  empties  itscdl',  it  runs 
up  to  the  villiiye  ;  it  diverpes  from  the  cut;  tlic  hnals  landed  just  l)c- 
low  the  sfeiiti  mill  on  the  (Jliippewii  (treek  ;  thret;  hoats  landed  there  ; 
when  the  men  dis(MnharKe(|  1  was  near  to  them;  there  were  ten  or 
twelve  in  a  boat  ;  I  should  say  McLeod  was  one  of  them  ;  I  was 
eijjfit  or  ten  feci  from  th(>  hoat  ;  I  saw  them  all  pet  out  of  the  i)oat ; 
VIr.  Smith  was  with  me  when  I  came  up  tho  canal  ;  I  said  I  would 
Q^o  and  see  who  was  in  those  boats,  nn(i  I  ran  to  tiie  spot  ;  the  men 
who  came  from  the  hoats  went  to  .Mr.  J)avis's  Tavern,  which  was  dis- 
tant ten  or  twelve  roils;  they  were  talking  about  the  Caroline;  there 
were  other  persons  who  came  to  the  boats,  hut  I  asked  no  qnesiious  ; 
when  they  ijot  to  Davis's  Tavern,  some  said,  "Let's  po  in  and  lake 
somethini;  to  drink  ;"  there  was  light  in  the  house  and  the  door  was 
opened  two  or  three  tinjcs ;  the  man  was  there  that  I  call  McLeod, 
and  I  don't  think  I'm  mistaken  about  it ;  I  was  within  eight  or  ten 
feet  of  hiin  when  they  made  a  halt  at  Davis's  Tavern  ;  he  stood 
about  ten  feet  from  the  stoop  ;  persons  talked  with  him  ;  there  was 
a  good  deal  said,  and  many  questions  asked  ;  I  am  as  sure  that  it  was 
McLeod  as  I  am  that  he  is  now  sitting  before  me  ;  he  then  went  into 
Davis's;  some  of  them  said  "our  bar-tender  is  here,"  (meaning  me.) 
we  will  go  over  to  Smith's  ;"  five  of  them  went  with  me  ;  between 
daylight  and  sunrise  the  next  morning,  some  one  came  in  and  said 
McLeod  was  standing  on  the  steps  at  Davis's  Tavern.  The  man  that 
said  McLeod  was  on  the  steps,  said  McLeod  was  wounded  last  night 
at  the  burning  of  the  Caroline.  I  said  hp  was  mistaken,  for  I  saw 
him  last  night  and  he  was  not  wounded. 

Question  by  the  Court. — Who  mentioned  to  you  that  McLeod  was 
wounded  1 

Witness. — Peter  Smith.  I  think  it  was  Peter  Smith  tha*;  spoke 
to  me  about  McLeod  being  wounded  ;  it  was  spoken  of  by  several. 
I  went  over  to  see  if  McLeod  had  his  arm  slung  up,  but  did  not  see 
him.  I  asked  Davis's  bar-tender  if  McLeod  was  there,  and  he  said 
he  was  somewhere  about.  When  I  looked  out,  McLeod  stood  on 
Davis's  stoop,  near  the  hall  door ;  that  might  have  been  four  or  five 
rods  from  where  I  stood.  McLeod  had  a  belt  round  him,  and  a 
sword  at  his  side,  when  he  got  from  the  boat. 

Cross-examined  by  Ma.  Spencer. — I  am  about  47  years  of  age.  I 
went  from  (Janandaigua  to  go  to  Canada.  I  left  there  the  1st  Sep- 
tember, eight  years  ago.  I  left  to  go  there  to  make  money.  I  did 
not  run  away.  I  did  not  go  away  for  debt,  or  anything  dishonest. 
I  returned  to  Canandaigua  in  April,  1838  ;  I  am  a  farmer  ;  I  know 
Mr.  David  C.  Bates  and  Mr.  Phineas  Bates  ;  I  went  into  the  baking 
business  at  St.  Catherine's  :  from  there  I  went  to  Chippewa  ;  I  built 
me  a  house  there,  and  some  part  of  the  time  I  was  in  the  lumbering 
business,  and  some  part  of  the  time  I  was  carrying  passengers  from 
the  steamboats  ;  I  only  stayed  with  Smith  in  the  bar  six  weeks  ;  I 
commenced  there  at  the  time  thej''  began  on  the  Island  ;  Piatt  Smith 
returned  with  me  that  night,  and  a  couple  of  sailors  that  I  did  not 
know,  and  Captain  Miller  also,  I  believe  :  we  started  together  from 
the  front  of  Davis's  ;  the   sailors  were  of  the  party  that  came  from 


the  I 

ansi 

t!un| 

the 

doul 

if    ll 

theil 

for(> 

hell 

lass 

tlicii 


MCLHou  a  TniAr<. 


(i.l 


iloiipthc  Nia- 
^  itNf'if,  it  runs 
muled  jiist  |)('. 
lauded  there  ; 
e  were  ton  or 

tlu'in  ;  I   WHS 
t  of  the  boat ; 

said  I  would 
pot ;  tlie  nieu 
'■liich  was  dis- 
iroh'ue ;  there 
no  questions  ; 
)  iu  aiui  tiilie 
the  door  was 
pall  MeLeod, 
I  cinfiit  or  ten 
rn ;  he   stood 
n  ;  there  was 
re  that  it  was 
icn  went  into 
mrnninnf  me.) 
ne  ;  between 
?■  in  and  said 
The  man  that 
led  last  nifrht 
)n,  for  I  saw 

McLeod  was 

tliat  spoke 
f  by  several, 
did  not  see 
and  he  said 
d  stood  on 
four  or  five 
him,  and  a 

s  of  age.  I 
he  1st  Sep- 
ney.  I  did 
dishonest, 
er  ;  I  know 

the  baking 
\va  ;  I  built 
3  lumbering 

ngers  from 
X  weeks  ;  I 
Piatt  Smith 
at  I  did  not 

ether  from 

came  from 


the  boats  ;  I  asked  them  their  uaiiies,  but  they  gave  mn  no  other 
answer  than  that  Col.  Clark  would  pay  iImm"  hoard  ;  they  boirdi'd 
there  two  or  three  days  herorc!  and  one  d;iy  after  the  nllliir  of 
the  ("uroliuc  :  the  sailors  had  belts  and  boiinling  pik(?s  ;  i  snw  ilieni 
down  at  the  boats  ;  I  know  theui:  iu  iVont  of  Davis's  they  askod  me 
if  1  wa-i  '/oiug  home  ;  the  first  day  liiey  came  there  they  i^^ave  me 
their  pistols,  cutlasses  nrid  blankets  ;  they  were  there  two  ui'^'hts  be- 
fore the  alliiir  of  the  Caroline  ;  they  wore  their  eutlass(;s  iu  their 
bells  ;  they  had  their  blankets  rolled  up  ;  they  called  lor  their  cut- 
lasses and  pistols  the  evening  they  came,  alter  supper  ;  they  too!i 
thorn  and  \t'ulke(|  out  ;  I  saw  them  again  the  next  morniuir.  .Mr. 
Piatt  Smith  laiil  them  away  for  them  the  next  morning  iu  the  same 
place  wlusre  I  had  put  them  the  day  before.  'They  remiiiued  till 
evening  again.  The  sailors  then  called  for  the  arujs,  but  not  for  th«' 
blardicts.  The  sailors  lay  up  stairs  part  of  the  day  ;  I  saw  them  at 
their  meals.  Tlu;  night  the  Caroline  wa  bunuid  they  took  their 
arms  again,  and  said  "  we'll  take  something  to  drink,  wc  shall  never 
sec  you  again."  The  fire  where  the  rails  were  burned  was  a  little 
above  the  head  of  the  cut.  1  thought  there  were  but  two  boats  at 
first,  for  they  went  pretty  quick,  but  when  I  came  up,  I  saw  there 
were  three.  It  was  as  late  as  3  o'clock  when  they  landed.  I  was 
not  absent  above  three-quarters  of  an  hour  from  Smith's.  I  was  ab- 
sent to  see  the  boat  burn  ;  I  was  not  in  bed  for  six  weeks.  It  was 
a  busy  time,  and  I  slept  on  the  counter.  I  went  up  to  where  the 
big  light  was  to  see  the  Caroline  burn.  I  could  see  it  from  the 
house,  but  there  was  not  so  good  a  view  there. — Some  thought  they 
saw  men  on  the  boat,  but  I  did  not  ;  I  thought  they  were  trees  that 
ilitercepted  our  view:  I  only  knew  Mr.  McLeod  and  the  two  sailors 
that  landed  from  those  boats  ;  it  was  a  cloudy  night  ;  I  should  think 
there  was  a  moon,  but  I  did  not  see  it  shine  ;  it  was  a  dark  night, 
but  I  think  I  should  know  a  man  ten  feet  off;  I  did  not  speak  to  the 
sailors  ;  I  did  not  think  it  was  my  business  to  meddle  with  other 
people's  business  ;  they  spoke  to  me  first  ;  I  don't  recollect  seeing 
any  other  light  than  that  at  Davis's  tavern  ;  1  went  up  within  twelve 
or  fifteen  feet  of  the  stoop  ;  McLeod  stood  on  the  stoop  ;  his  side 
face  was  towards  me  ;  folks  were  talking  with  him  ;  McLeod  was 
asked  the  question,  how  many  were  on  board  the  Caroline  ;  he  said 
there  were  a  good  many  ;  he  was  asked  if  any  of  his  own  party 
were  hurt,  and  he  said  there  was  only  one  armed  man  on  the  Caro- 
line, and  he  stood  sentry  ;  I  don't  know  how  many  lights  there  were 
in  the  bar  ;  McLeod  stood  between  me  and  the  light  ;  I  camiot  tell 
whether  there  was  a  light  outside  Davis's  bar  or  not  ;  tluMc  was  a 
lamp  hung  out  there  sometimes  on  dark  nights  ;  I  knew  Al.'Leod  by 
his  voice  and  also  by  the  light.  The  light  by  which  I  saw  McLeod 
was  inside  the  tavern.  I  cannot  say  whether  it  was  a  lamp,  a  candle, 
or  a  fire-light.  I  only  saw  a  light  shine  through  the  window,  and  I 
stood  ten  or  twelve  feet  from  him.  I  cannot  say  how  the  prosecutor 
knew  that  I  knew  this.  I  was  subpoenaed  last  winter  to  go  to  Lock- 
port.  I  don't  know  but  I  told  this  story  to  Mr.  David  C.  Bates.  I 
don't  know  that  I  ever  told  it  to  Mr.  Wheeler,  postmaster  of  Canandai- 
gua.      Many  people  have  asked  me  questions  about  it.      When  I 


M 


•I    M 


A  el' 


dl   1     ■       . 

»!'  :'i 


I 


is 


f  \4 


k        'W': 


,1    "' 


H   y 


''hill 


u 


OOULD  S    nEPORTBR. 


% 


:  i-'i' 


m 


wns  Imnbcriiicr,  I  whs  somntiiiicH  with  Mr.  Wiilkor,  nnd  Honinlimos 
u'iih  I'lntt  Siiiitli.  Al'icr  I  went  Ikmiic  with  the  sailorM  that  iiiirht,  I 
liiil  iij)  thi'ir  tiriiiH,  I  Miuv  th(^  HiiilorH  auiiiii  the  next  day.  Tht-y  tolrl 
nin  thoy  wpre  cfointj  to  board  on  a  schooner.  They  e.allod  for  their 
hliuiKeN,  niiil  said  they  were  croinuf  on  a  sehooner.  I  saw  one  after 
and  aslied  him  wiierc  he  "  put  np,"  and  he  said  "  on  the  seliooner." 
I  never  hehl  any  conversation  with  McLeod.  I  had  seen  him  at 
the  court  rooiri,  and  at  Niairara,  and  St.  Cath(»rin(?'s,  and  Chippewa  ; 
I  have  "  passed  the  lime  of  (hiy"  with  him,  l)nt  never  held  any 
conversation  with  him;  I  thonnht  I  knew  McLcod's  voice  and  his 
face  also;  I  am  satisfied  that  I  Know  him.  I  knew  an  expedition 
was  fjot  up  Olio  nij^lit  to  ifo  round  tlie  island.  I  was  not  iiceus- 
tonied  to  run  about  that  time  of  night,  but  I  then  suspected  they 
wer*'  goinrr  on  the  ishmd  ;  I  knew  nothing  of  the  burning  of  the 
Caroline  until  I  saw  her  on  fire  going  down  the  river  ;  1  did  not 
know  that  the  expedition  was  for  that  purpose  until  they  landed 
from  the  boat;  I  iioard  in  the  evening  that  there  was  an  expedi- 
tion on  foot  ;  the  sailors  asked  me  if  they  could  get  in  in  the  night, 
if  they  came  back.  I  told  them  they  would  find  me  up ;  i  ran 
<lown  to  see  who  were  in  the  boats,  that  I  might  sec  if  the  sailors 
were  there,  that  I  might  go  home  and  let  them  in.  I  saw  the 
sailors  there,  but  I  did  not  speak  to  them.  I  did  not  know  any- 
body there,  imtil  they  got  out  of  the  boats.  They  stayed  to  pick 
up  their  implements  at  the  boats  about  two  minutes,  and  about 
three  minutes  at  Davis's. 

Isaac  P.  Corson.,  examined  by  Mr.  Woods. — I  reside  at  Niagara 
Falls.  I  have  been  there  about  three  years — since  September,  1838 ; 
I  am  a  builder  ;  I  lived  in  Chippewa  from  1833  to  1837-8 ;  1  was  a 
n, aster  builder  there  ;  I  remember  the  time  the  Caroline  was  destroy- 
ed ;  I  saw  a  light,  but  I  am  not  certain  that  I  saw  her  ;  uiy  house  was 
about  a  quarter  of  a  mile  from  Chippewa  ;  I  was  in  the  village  that 
afternoon  and  evening  ;  I  know  Alexander  McLeod  ;  I  knew  him  in 
1833,  and  from  that  time  on;  I  saw  him  the  day  previous  to  the  de- 
struction of  the  Caroline  at  Mr.  Macklem's  store  that  afternoon  about 
3  or  4  o'clock  ;  I  also  saw  him  at  Davis's;  he  was  in  the  back  part 
of  the  store  ;  Capt.  Drew,  Mozier  and  Usher,  and  others,  were  with 
him  ;  I  thought  they  were  taking  liquor  ;  glasses  were  spread  around  ; 
I  remahied  but  a  minute  or  so  ;  the  man  who  kept  the  store  wished 
me  to  retire — they  had  some  private  business  ;  his  name  was  Call, 
I  think;  I  saw  McLeod  again  about  9  o'clock  in  the  evening  at 
Davis's  tavern  ;  he  came  out  at  the  bar-room  door  as  I  went  in  ; 
1  did  not  see  that  lie  was  armed  ;  a  man  went  out  behind  him,  but 
whether  in  company  or  not  I  cannot  say ;  I  saw  him  again  the  next 
morning,  between  daylight  and  sunrise,  at  the  stoop  of  Davis's 
Steamboat  Hotel ;  there  was  a  crowd  around  him  ;  he  was  telling 
some  of  his  exploits  onboard  the  Caroline,  and  what  the  performance 
had  been.  He  was  saying  he  guessed  they  would  not  want  to  see 
him  there  again  ;  he  had  killed  one  damned  Yankee  or  two.  There 
were  many  around,  and  I  was  listening  to  one  or  another  bragging  of 
what  they  had  done  in  the  expedition  with  him.  None  of  them  dis- 
puted McLeod  or  said  he  lied.     I  might  have   seen  him  that   day 


i 


ir> 


■  .*» 


'^    % 


nnd  HomntiincN 
H  that  iiiirlit,  i 
ly.  'riicy  toKI 
called  lor  tlicir 
Niiw  one  al'icr 
llu>  sclidoiior," 
1(1  seen  liiiii  ;U 
aid  Cliippcwii  ; 
•viT  hold  any 
<  voice  and  liis 
■  an  t'xpculitiojj 
'Hs  not  ucciis- 
suspectcd  liicy 
)iirniii!>'  of  the 
vvv  ;  1  did  not 
il  tlicy  landed 
ruB  au  oxpedi- 
n  in  tiic  niprlit, 
ue  lip;  1  ran 
3  if  tlu!  sailors 
I  saw  the 
lot  know  any- 
stayed  to  pick 
cs,   and    about 

le  at  Niaofara 
)tember,  1838 ; 
il-H  ;  1  was  a 
e  was  destroy- 
niy  liouse  was 
c  village  liiat 

knew  him  in 
ous  to  the  de- 
fternoon  about 

the  back  part 
its,  were  with 
iread  around ; 
3  store  wished 
ame  was  Call, 
e  evening  at 
IS  I  went  in  ; 
lind  him,  but 
igain  the  next 
p  of  Davis's 
J  was  telling 
3  performance 

want  to  see 

two.  There 
T  bragging  of 

of  them  dis- 
lim  that   day 


I 


MCLKOU  .i    TRIAL. 


(;r» 


u:>ain  ;  I  saw  him  a  day  or  two  after  that,  coming  up  from  tiie  north 
M  ic  of  the  Creek  to  Kiri<patrick'H ;  \ic.  hud  a  Hpy  gluHs  ;  he  Imd  been 
looking  over  at  Schlos-icr  ;  iIhtc  was  a  gatht'riii;r  llicre  ;  he  lalkf  ' 
of  the  galhcriii'4  at  SchlosMT,  and  said  t!ic  ^'.uil»rcs  were  a  set  ot 
cheats,  robburM,  and  thieves,  and  he  should  like  to  lie  on  such  another 
exjiedition  as  the  (.'arolliie,  and  cut  out  iiml  burn  ISulialo. 

Cross-examined  iiy  Mi'.  Si-k-nckk. —  I  saw  Md/eod  when  he  wa-s 
I  iken  up  at  Niagara  Falls  ;  it  was  last  fall,  Imi  1  cannot  say  what 
Mionih  ;  I  thiid»  it  was  l)ec«'iul)er  ;  he  was  lakeu  up  lor  this  murder  ; 
I  uudeislood  tin n-  was  an  exauiinaliou,  bul  1  was  not  present  ;  I  was 
there  in  the  evening,  at  the  Eagle  Hotel,  when  he  was  there;  I  wa> 
told  .S(|uire  Hraduer  issued  the  pro(ress;  he  was  sent  to  liockpori 
then,  as  I  was  lold  ;  1  do  not  know  whether  ho  was  discharged  by 
S(|uire  Hradner  or  committed,  but  I  was  told  he  was  siMit  for  to 
Lockport  ;  wh(>n  I  came  up  there  I  was  told  h^  was  under  a  warrani, 
was  to  be  examined  the  next  morning  ;  I  did  not  appear  against  liiiu 
as  a  witness,  nor  did  I  tell  anybody  that  night  what  1  knew  about  this 
matter  ;  1  appeared  before  the  graml  jury  against  him,  at  liockport, 
after  that,  three  or  four  months  after;  I  don't  think  he  was  discharged 
before  Sipiire  Ikadner  ;  I  heard  that  McLeod  had  a  hearing  on  Habeas 
Corpus  there,  and  was  discharged  and  went  home  ;  I  appeared  against 
him  before  the  graml  jury  in  February  ;  1  was  at  the  Falls  when  he 
was  arrested  at  Lewiston  ;  he  was  there  under  arrest  three  or  four, 
perhaps  live  days  ;  i  did  not  go  down  ;  I  was  not  subpanaed  ;  I  diil 
not  tell  anybody  what  I  knew  ;  I  did  not  want  to  have  any  trouble 
about  it ;  1  did  lutt  tell  anybody  until  I  was  taken  to  Court,  no  more 
than  what  I  had  tidd  on  the  other  side  the  river  before  I  moved  over  ; 
1  moved  in  September,  1838  ;  I  had  told  there,  what  he  had  said  about 
thd  Caroline  ;  1  recollect  his  being  examined  before  Squire  liell ;  il 
was  the  same  fall  that  he  was  discharged  under  Habeas  Corpus  ;  I  heard 
of  his  examination  befgtre  Judge  Bowcn  ;  I  did  not  attend  cither  ex- 
amination ;  1  kept  it  to  myself  on  this  side;  the  Captain  Usher  that 
1  saw  was  the  Captain  Uslier  that  was  murdered  at  his  own  door ;  I 
only  knew  Capt.  Drew  and  Capt.  Mo/ier  by  sight ;  it  was  the  28th  or 
2i)th  of  December  that  I  saw  them  ;  I  only  knew  it  was  that  time 
from  the  almanacks  ;  I  was  doing  a  lieavy  business,  and  I  kept  my 
books,  and  put  down  the  date  usually  at  the  foot  of  my  bills ;  I  was 
engaged  three  or  four  weeks  making  out  my  bills,  off  and  on;  I  am 
well  convinced  it  was  the  latter  end  of  December  that  I  saw  them  at 
Macklem's  ;  it  was  on  the  day  previous  to  the  destruction  of  the 
Caroline  1  saw  the  lire  on  the  opposite  shore  ;  I  lived  in  the  village 
of  Chippewa  ;  I  was  in  at  Macklem's  frequently  ;  I  have  seen  McLeod 
at  Davis's  frequently  ;  I  saw  him  there  at  9  o'clock  that  night  ;  I  hud 
heard  a  whisper  about  2  or  3  o'clock  that  day,  that  the  troops  or  vol- 
unteers that  they  were  getting  up,  were  going  round  the  Island  or 
to  cut  out  the  Caroline  that  night  ;  I  don't  know  that  McLeod  was  oiif 
of  the  troops,  but  he  was  among  them  some  times.  1  did  not  know 
one  in  a  hundred  that  came  out  of  Davis's  that  day,  nor  do  I  know  in 
particular  why  I  noticed  McLeod  then.  I  did  not  speak  to  him  ;  he 
went  towards  Macklem's  store,  and  he  went  off  towards  the  cut.  It 
was  as  late  as  9  o'clock.     The  next  morning  I  was  within  four  or  five 


J    I  4< 


r  '" 


i  t'i 


il  ' 


5  .,ri 


CG 


GOULD  S    KEPOPtTEn. 


in 


?!!'! 


.1 


foet  of  him.  I  did  rot  speak  with  him.  There  were  a  great  many 
llocking  round  him.  The  people  tliat  were  round  him  were  princi- 
pally strangers.  I  think  Mr.  William  Caswell  was  there,  but  I  am 
not  certain.  Mr.  Caswell  is  here  as  a  witness.  It  lirst  struck  me 
this  moment  that  Caswell  was  there.  We  have  talked  some  little 
about  it.  Caswell  told  me  he  was  subpoenaed  as  a  witness  ;  I  think  we 
have  talked  about  seeing  McLeod  that  morning. 

By  the  (,'ouiiT. — 1  cannot  say  which  spoke  of  seeing  McLood  that 
morning  first  ;  1  think  I  did  ;  I  think  he  said  he  saw  McLeod  the 
next  morning  after  the  burning  of  the  Caroline. 

By  Mr.  Spkncek. — I  think  Caswell  told  me  McLeod  bragged  about 
being  on  the  boat.    We  did  not  fix  what  he  said  and  the  time  together. 

The  Attorney  General  objected  to  the  witness  being.asked  what 
another  witness  had  said. 

Judge  GuiDLEY  thwight  it  was  proper  ;  the  witness  had  said  that 
it  never  occurred  to  him  till  this  moment  that  Caswell  was  there,  and 
he  also  said  that  Caswell  and  he  had  talked  on  the  subject  before, 
and  that  Caswell  told  him  he  was  there.  The  examination  was  pro- 
per to  ascertain  whether  the  witness  was  mistaken  or  alluded  to  some 
other  time. 

By  Mr.  Spencer. — Caswell  resides  in  BufTalo. 

By  Mr.  Woods. — Chippewa  was  filled  with  troops  and  other  peo- 
ple ;  there  were  2,000  there ;  many  were  quartered  at  Davis's. 

By  the  Attorney  General. — Recently,  after  the  affair,  I  told  several 
at  Chippewa  what  I  had  heard  and  seen. 

By  Mr.  Spencer. — I  told  Mr.  Frederick  Smith  and  John  C.  Davis, 
who  keeps  the  hotel.     Mr.  Davis  is  here  as  a  witness. 

It  being  now  6  o'clock,  the  Court  adjourned  until  15  minutes  to  S 
o'clock  to-morrow  morning,  and  the  Jurors  and  others  retired  with 
their  usual  order  and  regularity.  The  prisoner  was  re-conveyed  to 
Bagg's  hotel,  where  he  was  kept  in  the  custody  of  the  SherifT.  "Jhe 
prisoner  sat  throughout  the  day  with  his  counsel,  much  sit  his  ease, 
notwithstanding  the  strong  testimony  of  some  of  the  witnesses  against 
him. 


THE   THIRD    DAY. 

Judge  Gridley  took  his  seat  this  morning  at  15  minutes  to  8 
o'clock,  at  which  time  there  were  but  a  few  officers,  lawyers  and 
reporters,  and  not  a  single  spectator  present.  The  prisoner  was 
brought  in  soon  afterwards ;  the  jury  were  a  few  minutes  later,  and 
then  about  a  dozen  witnesses  and  idlers  took  possession  of  the  spec- 
tator's seat. 

Charles  Parke  was  the  first  witness  called — Examined  by  Mr. 
Woods. — I  reside  in  the  Niagara  District  in  Canada ;  I  am  a  native 
of  Canada ;  I  was  raised  on  Chippewa  Creek  ;  I  was  there  when  the 
Caroline  was  destroyed ;  I  was  attending  bar  for  Mr.  Davis ;  I  was 
there  rising  three  months,  commencing  about  the  10th  or  15th  of 
December,  on  the  day  on  which  they  first  discovered  people  on  the 
Island  ',  I  have  known  Mr.  McLeod  th^  greatest  portion  of  the  time  ; 


4 


It;  1 

ters ; 


•  i,  f 


':M 


> 


a  great  many 
were  princi- 
here,  but  I  am 
irst  struck  me 
!(l  some  little 
!ss  ;  I  think  we 

McLood  tliat 
McLeod  the 

bragged  about 
time  together, 
ig.asked  what 

had  said  that 
ivas  there,  and 
Libject  before, 
ition  was  pre- 
luded to  some 


linutes  to  8 
lawyers  and 
)risoner  was 
es  later,  and 
of  the  spcc- 

ned  by  Mr. 

am  a  native 
re  when  the 
)avis ;  I  was 

or  15th  of 
eople  on  the 
of  the  time  ; 


1 


id  other  peo- 

Davis's. 

1 1  told  several 

ohn  C.  Davis,      || 

minutes  to  S 

retired  with 
-conveyed  to 
BherifT.  ^he 
1  Jil  his  ease, 
lesses  against 


MCLEOD  S    TRIAL. 


67 


he  has  held  the  office  of  Deputy  Sheriff  of  the  Niagara  District.  I  saw 
him  at  Chippewa  in  the  afternoon  of  the  day  previous  to  tiie  night  on 
which  the  Caroline  was  destroyed  ;  I  saw  him  pretty  much  that  day, 
and  almost  every  day  for  that  matter  ;  1  saw  him  that  day  ;  he  v\ .  nt 
ti)  bed  at  Mr.  Davis's  pretty  early — before  dark;  I  saw  hi tfi  again 
after  dark  ;  a  gentleman  came  and  asked  for  McLeod,  and  he  was 
sliown  wlierc  he  was;  ]Mr.  McLeod  got  up;  it  was  between  eight 
and  ten  o'clock ;  he  came  down  into  the  bar-room,  and  J  think  he 
sfiid  to  Mr.  Davis,  if  his  brother  should  come  to  say  he  had  gone  to 
Niagara;  [  saw  him  after  he  left  the  house  that  night,  between  .vi;. 
Davis's  and  Chippewa  Cut ;  it  was  perhaps  three-quaners  of  an  hour 
after;  there  were  a  good  many  people  along  the  road  ;  whether  you 
could  consider  them  in  his  company  or  not  I  cannot  say  ;  he  went 
to  some  boats  tied  up  at  the  side  of  the  river  ;^ there  were  from  lOO 
to  200  people  there — 100  at  all  events ;  he  proceeded  up  the  Nia- 
gara river  with  the  boats  ;  I  think  he  got  into  one  of  them  ;  he  went, 
I  should  think,  three-quarters  of  a  mile  up  the  river  with  the  boats  ; 
they  had  got  out  of  the  boats  again  and  towed  the  boats  up  the  river 
to  the  point  of  embarkation,  nearly  opposite  the  lower  end  of  Navy 
Island  ;  the  current  is  stifT,  and  they  towed  the  boats  to  get  them  up 
earlier;  they  shoved  ofTfrom  shore,  and  steered  across  the  river  as 
far  as  I  could  see ;  I  remained  there  an  hour,  and  then  returned  to 
Mr.  Davis's  and  went  to  bed  ;  I  left  Mr.  Johnson,  the  bar  tender, 
with  me,  up;  I  have  understood  he  is  in  Detroit;  I  have  not  seen 
him  since  the  fall  of  '38 ;  I  saw  McLeod  again  next  morning,  about 
sun-rise  or  a  little  after,  or  a  little  before  ;  I  saw  him  in  the  village 
of  Chippewa,  either  in  front  of  Mr.  Davis's  house,  or  in  the  square  ; 
there  were  a  great  many  people  stirring  at  that  time ;  there  were 
none  very  close  to  him  ;  I  do  not  recollect  hearing  him  say  anything  ; 
if  I  recollect  right  McLeod  had  a  sword  by  his  side  ;  I  believe  I  saw 
him  again  during  that  day  ;  I  think  not  a  great  while  after,  standing 
on  Mr.  Davis's  platform  or  stoop  ;  I  don't  recollect  how  often  1  saw 
him  ;  I  have  seen  him  very  often  since  that  day  ;  he  was  about  Chip- 
pewa a  good  deal  that  winter  ;  he  was  often  in  the  officers'  mess 
room ;  I  think  1  have  heard  him  say  something  about  the  destruction 
of  the  Caroline;  it  was  two  or  three  days  after;  [  think  it  was  in 
the  mess  r  »m  where  the  officers  dined;  Captain  Stennot  was  one 
that  was  there,  and  Major  Cockle  of  the  dragoons ;  there  were  four 
or  five  of  them  ;  he  said  he  had  killed  a  Yankee,  or  something  to  that 
purport ;  they  were  conversing  in  reference  to  the  Caroline  ;  I  speak 
with  considerable  certainty  when  1  say  that  McLeod  got  into  the  boat 
•opposite  the  lower  part  of  Navy  Island.     I  have  no  doubt  of  it. 

Cross-examined  by  Mr.  Spencer.  When  I  am  at  home  I  live  now 
in  the  township  of  Mamfleet,  seventeen  or  eighteen  miles  up  the 
Chippewa  Creek;  I  am  farming  and  have  a  family;  I  cannot  exactly 
say  1  own  the  farm  ;  it  would  be  a  lengthy  story  to  say  how  I  hold 
it ;  I  hold  it  with  the  other  heirs  of  my  father — my  brothers  and  sis- 
ters ;  my  age  is  twenty-nine.  I  attended  bar  for  Mr.  Davis  some- 
thing like  three  months  and  a  half ;  it  was  a  busy  time  there  ;  there 
was  a  man  named  Johnson  attended  bar  there  ;  he  was  there  before  1 
came  ;     Mr.  Davis  attended  sometimes;  the  regular  number  that  be- 


y.,  ■■■ 


•1      !'-  '. 


I-     '•:  ! 


t'« 


^■^1 


■\ 


"^ 


i:    '; 


Ma  'I 


'Ill 


GS 


GOULD  S    REPORTER. 


i  'if  J 


longnd  to  the  officers'  mess  was  six  or  eight ;  there  was  Capt.  Win. 
Steniiot,  Lieut.  Caldwell,  Captain  Lackey,  Mr.  Cockle,  who  had  some 
office  in  the  Dratroons,  whether  Major  or  Captain  I  cannot  say ;  I 
don't  recollect  the  names  of  the  others.  There  were  other  guests 
about  the  house.  There  was  a  great  deal  of  business  doing.  I  savv 
.'several  persons  in  the  square  that  I  knew  the  next  morning.  The 
mess  room  was  up  stairs  immediately  over  the  bar-room;  McLeod 
spoke  boastfully  there  of  the  Caroline  affair;  there  were  several  in 
tlie  room  ;  I  had  busincfs  there  as  bar  tender  ;  it  was  a  day  or  two, 
or  three,  after  the  Caroline  affair  ;  they  were  all  talking  ;  I  cannot  say 
exactly  what  they  said  ;  they  were  speaking  in  praise  of  the  deed, 
or  something  that  purported  to  be  that;  they  were  all  talking  ;  I  can- 
not tell  what  either  one  said  ;  1  was  in  the  room  five  or  ten  minutes  ; 
I  was  called  into  the  room  ;  I  never  went  in  unless  I  had  business, 
but  I  had  business  there  sometimes  when  I  was  not  called  ;  I  don't 
know  whether  I  went  there  with  beer  or  liquor,  or  Avhat  it  was.  I 
don't  know  the  date  on  which  the  Caroline  was  burnt ;  the  evening 
before  I  don't  think  I  left  the  house  ;  I  was  very  seldom  away  unless 
it  was  to  go  to  a  store  on  business;  I  had  business  enough  to  con- 
fine me  to  the  house  ;  after  the  night  on  which  the  expedition  took 
place  it  was  some  time  before  I  left  the  house  again  ;  I  think  it  was 
as  much  as  a  month ;  we  were  kept  busy  night  and  day  ;  for  aught  1 
know  the  29th  Dec.  was  as  busy  a  day  as  any  other ;  there  was  no 
room  that  night ;  I  think  I  left  the  house  that  night  about  10  o'clock, 
perhaps  it  was^.later,  probably  11  o'clock;  I  left  the  house  that  night 
on  the  invitation  of  a  friend  of  mine,  Peter  B.  Nellis,  who  then  lived 
on  the  Grand  River,  who  said  there  was  to  be  an  expedition  to  de- 
stroy the  Caroline  ;  I  think  he  has  removed  to  the  Forty  Mile  Creek. 
I  saw  something  burning  over  at  Schlosser  ;  we  were  up  the  river 
side,  1  should  think,  a  full  hour ;  I  came  back  alone  ;  my  friend  did 
not  wish  to  go  back  so  soon,  and  as  I  had  been  up  a  good  deal,  and 
was  fatigued,  I  went  back  and  went  to  bed ;  perhaps  it  was  12 
o'clock  when  I  returned ;  it  might  be  later  ;  I  saw  the  fire  but  a 
short  time  before  I  started  to  go  home ;  I  was  not  then  where  the 
boats  started;  I  looked  at  the  fire  but  a  few  minutes — perhaps  three 
minutes — perhaps  five ;  I  got  tired  of  being  there  before  that ;  it 
was  quite  still  then ;  there  was  no  noise  from  any  quarter.  When  1 
saw  the  fire,  I  only  knew  what  it  was  from  imagination,  and  from 
what  Mr.  Nellis  said  it  was ;  he  and  I  had  come  back  together  as  far 
as  the  beacon  light ;  there  was  another  Nellis  with  us — Captain  Wil- 
liam Nellis ;  he  is  cousin  to  the  other  Nellis,  and  he  now  lives  on 
the  Forty  Mile  Creek.  We  three  were  in  company  ;  there  were 
many  others  strolling  along;  Mr.  Davis's  house  was  perhaps  60  rods 
from  the  beacon  light  by  the  road  ;  there  were  several  sentinels  that  I 
had  to  pass  on  going  up  ;  I  had  to  give  them  the  countersign  ;  I  got  it 
from  Mr.  Nellis,  the  man  who  invited  me  to  walk  up  the  river  with 
him;  it  was  "Place,"  if  I  recollect  right ;  I  think  I  was  only  hailed 
by  the  first  sentinel  as  we  went  up  and  by  none  as  we  returned  ;  tho 
sentinel  cried  "who  goes  there,"  I  said  "friend;"  he  said  "advance 
friend  and  give  the  countersign  ;"  I  advanced  and  said  "  Place"  in  a 
low  tone  ;  we  each  gave  the  countersign;  the  soldier  was  Robert 


i 


"¥.- 


Capt.  Wm. 
o  had  some 
not  say ;  I 
ither  guests 
ing-.     I  saw 
ning.     The 
;  McLeod 
several  in 
day  or  two, 
cannot  say 
r  the  deed, 
ing  ;  I  can- 
^n  minutes ; 
d  business, 
ed ;  I  don't 
t  it  was.     I 
the  evening 
iway  unless 
ugh  to  con- 
jdition  took 
;hink  it  was 
for  aught  1 
lere  was  no 
:  10  o'clock, 
B  that  night 
>  then  lived 
lition  to  de- 
Mile  Creek, 
up  the  river 
Y  friend  did 
ad  deal,  and 
5  it  was  1-2 
fire  but   a 
I  where  the 
;rhaps  three 
)re  that ;  it 
r.     When  I 
n,  and  from 
ether  as  far 
aptain  Wil- 
ow  lives  on 
there  were 
aps  60  rods 
tinels  that  I 
gn;  I  got  it 
!  river  with 
only  hailed 
;urned ;  tho 
J  "  advance 
Place"  in  a 
ivus  Robert 


MCLEOD  S    TRIAL. 


fii) 


I 


% 


Miller,  who  had  been  a  student  under  my  brother  at  Dundas  ;  he 
]r,id  sHulied  physic  or  something  of  that  sort  ;  when  I  left  tiie  house 
that  night  there  were  very  few  people  tliere  ;  Mr.  Nellis  had  been 
slaying  at  our  house  two  or  three  days  at  that  time  ;  there  were  a  good 
many  men  got  into  the  boats  where  thev  were  lirst  towed  up  at  the 
mouth  of  the  Chippewa.  There  were  e  ght  boats  towed  up  the 
river  ;  they  were  towed  up  by  hand  ;  there  were  no  candles  or  lamps 
about  the  boats ;  I  cannot  say  McLcod  got  into  the  boats  at  the 
mouth  of  the  Chippewa.  I  saw  three  or  four  others  that  I  knevv  of 
the  party.  I  saw  Captain  Drew  there,  or  a  person  I  considered  to  bo 
Captain  Drew  ;  I  did  not  speak  to  any  of  the  party  ;  I  knew  a  person 
(if  the  name  of  McDonald  j  I  believe  he  belonged  to  the  Coburg 
Company ;  I  was  quite  close  to  McLeod,  sometimes  three  feet  from 
him,  sometimes  our  elbows  might  touch  ;  I  was  very  close  to  where 
they  were  getting  out  the  boats  ;  I  did  not  speak  to  him;  I  think  1 
heard  him  speak  ;  it  was  something  in  reference  to  ihe  men  getting 
into  the  boats ;  I  don't  recollect  what  it  was ;  I  don't  know  how 
many  got  into  the  boats  at  the  point  of  embarkation  from  which  they 
left  the  Canada  side ;  perhaps  60  or  70  ;  I  think  there  were  some 
in  the  boats  as  they  were  towed  up  the  river  ;  I  cannot  tell  how 
many  composed  the  whole  party  ;  I  was  with  the  party,  and  among 
them  as  they  were  going  up  ;  sometimes  I  was  a  little  ahead  of  them. 
There  were  a  considerable  many  persons  besides  ;  I  was  close  to  them 
when  they  embarked  finally  ;  I  was  within  four  or  five  feet  of  them  ;  I 
was  with  them  and  among  them  ;  I  looked  McLeod  in  the  face  as  he 
went  aboard;  I  am  in  the  habit  of  looking  men  in  the  face,  it  is  cona- 
mon  ;  I  had  no  more  reason  than  I  have  ordinarily  when  I  meet  a  man. 

By  the  Court. — The  embarkation  was  not  from  one  boat  to  an- 
other, but  to  each  one. 

By  Mr.  Spencer. — The  boats  lay  along  shore  ;  I  do  not  recollect 
whether  McLeod  went  aboard  with  Capt.  Drew ;  he  did  not  go  on 
board  with  McDonald  ;  the  boats  did  not  all  leave  the  shore  ;  seven 
only  left  ;  one  remained,  and  I  believe  there  was  a  man  in  it,  who 
had  it  tied  up ;  I  think  eight  or  nine  went  on  board  each  boat ;  1 
think  they  were  all  about  an  equal  number;  I  think  Capt.  Drew  went 
on  board  one  of  the  centre  boats  ;  i  cannot  say  that  1  knew  any  one 
man  in  particular  who  went  on  board  with  Capt.  Drew. 

By  the  Court. — I  cannot  recollect  whether  Capt.  Drew  and  McLeod 
went  on  board  together. 

By  Mr.  Si'encer. — I  knew  what  they  were  going  for  ;  Mr.  Nellis 
told  me  ;  he  is  a  militia  officer  ;  I  don't  know  Col.  McNab  ;  lie  was 
generally  understood  to  be  commander-in-chief;  he  had  his  head 
quarters  somewhere  in  the  place  ;  1  had  a  man  pointed  out  to  me  as 
McNab;  I  know  Davis's  tavern;  that  was  possibly  five  rods  distant 
from  Smith's  ;  I  do  not  know  that  McNab  had  his  quarters  there.  I 
have  had  some  conversation  with  the  counsel  in  this  case,  since  I 
came  here ;  it  was  with  this  gentleman  (the  Attorney  General)  and 
Mr.  Wood. 

Attou-ney  General. — I  can  tell  the  Counsel ;  I  desired  him  to  tell 
me  all  he  knevv. 

Mf.  Si'ENCER. — I  don't  desire  the  Counsel  to  tell  me  any  thing. 


^ 


t  r 
'ii  I 


ro 


GOULDS    REPORTER. 


Cross-examination  continued. — I  did  not  see  any  papers,  but  I  have 
heard  commissions  were  taken  in  Canada. 

Hy  Judge  Gridley. — The  embarkation  was  mucli  about  tlie  same 
time  ;  they  were  two  or  three  minutes  getting  ready. 

By  Mr.  Si'KNCEu. — I  think  McLeod  went  aboard  a  centre  boat  ;  1 
was  acquainted  with  him;  I  iiad  done  business  with  him;  I  had  tw(» 
executions  against  a  man,  and  I  wished  his  goods  to  be  levied  on, 
and  I  called  upon  McLcod  as  Deputy  Sheriff,  on  the  subject ;  on  an- 
other occasion  I  went  with  Mr.  Ford  to  settle  some  Sheriff's  fees; 
that  was  in  the  fall  of  183(j  ;  I  went  to  be  a  witness  to  the  transac- 
tion ;  that  was  at  Niagara ;  1  lived  on  Grand  River  at  that  lime  ;  that 
is  seventy  miles  from  Niagara ;  I  went  from  my  mother's  down  to 
witness  that  transaction  at  that  time,  a  distance  of  28  or  30  miles ;  I 
don't  recollect  the  sum  ;  Ford  is  my  brother-in-law  ;  he  was  in  the 
lumbering  business;  Ford  paid  my  expenses;  indeed  1  was  in  their 
employ  at  that  time  ;  he  lived  at  Grand  River  too.  I  think  Mr.  McLeod 
carried  arms  at  times;  I  have  seen  him  wear  arms  in  his  official  ca- 
pacity ;  I  saw  him  once  at  the  Falls,  wearing  a  sword ;  Sheriil's 
sometimes  wear  swords  there ;  they  wear  them  when  going  on  some 
dangerous  expedition. 

By  the  Court. — The  High  Sheriff  wefu's  a  sword  in  Court  some- 
times. 

By  Mr.  Spencer. — The  guard  I  spoke  to  was  up  the  Chippewa 
Creek ;  after  I  had  passed  young  Miller  I  think  I  saw  other  guards ; 
they  were  militia ;  I  don't  recollect  that  I  was  challenged  by  any 
others ;  I  do  not  know  that  there  was  a  guard-house  there,  with 
colored  guards  ;  I  saw  McLeod  the  next  morning  about  sunrise  ;  .1 
went  to  bed,  leaving  the  boat  burning,  and  did  not  get  up  till  morn- 
ing ;  I  crossed  a  bridge  near  Davis's  tavern  as  I  went ;  Miller,  the 
guard,  stood  there ;  I  cannot  tell  when  I  first  mentioned  what  I 
knew  of  this  matter  ;  I  told  many  I  was  on  business  at  Buffalo,  and 
was  there  subpoenaed  by  a  man  of  the  name  of  Pierce,  I  think  ;  it 
was  last  Monday  week ;  1  had  been  spoken  to  before  about  coming 
here. 

The  Attorney  General  objected  to  this  examination,  and  to  the 
names  of  persons  being  mentioned  who  might  be  prejudiced  in  Can- 
ada, when  the  disclosure  was  not  material  to  the  case. 

Judge  Gridley  thought  the  means  and  agency  by  which  he  was 
brought  here  was  admissible.  By  such  examinations  it  sometimes 
turned  out  that  witnesses  had  been  bribed. 

Examination  continued — I  was  spoken  to  last  winter  ;  they  wished 
me  to  go  across  the  river  that  I  might  be  caught  or  subpoenaed  against 
McLeod  ;  I  think  the  persons  were  not  engaged  in  the  patriot  mat- 
ter; they  are  religiously  bound  against  taking  up  arms;  they  are 
"  Reformers  ;"  one  said,  if  he  was  in  my  place  he  would  go  over, 
and  he  asked  me  why  I  would  not  go  over  ;  1  was  spoken  to  a  week 
before  I  went  across,  to  know  if  I  wouM  not  go  to  Buffalo;  I  told 
them  that  I  would  not.  This  conversation  took  place  at  the  mouth 
of  the  Chippewa;  I  was  then  on  my  way  to  Buffalo  ;  I  had  come 
from  home  ;  I  was  not  spoken  to  some  few  days  before  I  came  ;  1 
was  spoken  to  a  month  or  two  months  before  I  came,  by  different 


persouj 
was  g(. 
nothin^j 
1  did  n< 
brary, 
waf.  tall 
siiid   hi 
n'lo  ;  ail 
canmiit 
thein  I 
if  no  on 
notice, 
Chippev 
the  Can 
said  his 
expect 
1  said 
($50) t 
Hawley 
would  r 
to  work 


MCLEOD  S    TRIAL, 


rs,  but  I  have 

Hit  the  sfinic 

ntre  bout  ;  1 
1 ;  I  had  two 
)e  levied  on, 
ject ;  on  an- 
erifl''s  fees ; 
-he  traiisac- 
it  time  ;  that 
r's  down  to 
30  miles ;  I 
'■  was  in  the 
.vas  in  their 
Vir.  McLeod 
s  official  ca- 
rd ;  SheriliVi 
ng  on  some 

vourt  somo- 

i  Chippewa 
her  guards; 
ged  by  anj'^ 
there,  with 
;  sunrise  ;  .1 
p  till  morn- 
Miller,  the 
led  what  1 
iuflalo,  and 
I  think ;  it 
out  coming 

and  to  the 
ced  in  Can- 

ich  he  was 
sometimes 

bey  wished 

aed  against 

atriot  mat- 

i ;  they  are 

Id  go  over, 

1  to  a  week 

ilo ;  I   told 

the  mouth 

had  come 

I  came  ;  I 

y  different 


71 


persons  than  those  who  spoke  to  me  last  winter  ;  they  asked  me  if  I 
was  going,  and  why  I  would  not  go ;  I  told  them  I  would  liuve 
nothing  to  do  with  it.  Wlu-u  I  left  home  this  time  to  go  to  Bufliilo, 
1  did  not  expect  to  come  to  tiiis  trial  j  i  came  to  buy  books  for  a  li- 
brary, a  stove,  a  pump,  and  a  plough  ;  I  did  none  of  that  business  ;  I 
was  taken  early  after  sunrise  ;  he  knew  I  was  there  in  this  way  ;  he 
siiid  he  was  in  Ciiippewa  when  1  drove  through,  and  he  knew 
me  ;  and  I  suppose  it  was  known  that  I  was  going  ;  we  had  held  a 
C(urnnittee  about  buying  books  two  or  three  weeks  before,  and  I  told 
them  I  had  business  in  Bull'alo,  and  would  do  tlie  business  for  them 
if  no  one  else  went  first ;  a  few  days  before  i  started  1  gave  them 
notice,  that  they  might  have  the  money  readj' ;  Pierce  crossotl  from 
Chippewa  to  the  Falls  ;  I  charged  hiin  with  having  au  emissary  ou 
the  Canada  side,  for  the  purpose  of  giving  him  information  ;  and  he 
said  his  emissary  was  himself;  my  brother  took  my  team  home,  I 
expect ;  I  was  hurried  off  to  this  place  immediately  after  breakfast ; 
1  said  I  would  rather  pay  the  penalty  mentioned  in  the  subpcuna 
($50)  than  go  ;  but  I  was  told  it  must  be  left  with  Mr.  Hawley  ;  Mr. 
Hawley  came  and  said  I  could  prove  some  important  facts,  and  if  I 
would  not  go,  he  would  detain  me  on  that  subpu;na,  and  set  himself 
to  work  to  arrange  means  to  force  me  to  go  ;  he  had  some  name  for 
it  that  I  do  not  recollect ;  I  was  ignorant  of  the  power  he  had  ;  when 
I  left  home  I  understood  the  trial  was  to  come  on,  but  I  thought  a 
week  before. 

By  the  Attorney  General. — I  came  to  Chippewa  and  returned 
home  again  ;  my  reason  Avas,  that  I  was  asked  by  a  man  whether  I  was 
going  to  Buffalo  ;  he  was  a  man  who  had  asked  me  some  time  before 
to  go ;  I  returned  home,  and  stayed  a  week  from  fear  of  being 
taken  as  a  witness  ;  when  I  had  the  interview  with  the  counsel  which 
has  "been  alluded  to,  I  had  not  any  evidence  read  to  me,  nor  was  I 
prompted  in  any  way  ;  I  was  asked,  on  the  night  of  the  expedition,  to 
join  it,  and  enter  the  remaining  boat  which  they  had  not  men  enough 
to  man,  but  I  declined. 

By  Air.  Spencer — Who  was  the  man  that  asked  you  to  come  to 
Buffalo  I 

The  witness  hesitated. 

The  Attorney  General  objected  to  the  question. 

Judge  Griuley  said  if  Counsel  insisted  upon  it  the  Court  had  no 
discretion. 

Mr.  Spencer  waived  the  question. 

The  cross-examination  continued — When  I  turned  home,  as  I 
have  mentioned,  I  did  so  because  I  was  afraid  of  being  taken  ;  [ 
understood  they  took  witnesses  under  warrants  sometimes ;  I  am 
ignorant  of  the  laws  of  this  State. 

He?iry  Meyers — Examined  by  the  Attorney  General. — I  reside 
about  4  miles  this  side  Canandaigua ;  I  work  on  a  farm  ;  I  have  a 
family  ;  I  am  a  blacksmith  by  'rade  ;  I  have  resided  in  Canada  ;  I  am 
a  citizen  of  the  United  States  born.  I  went  to  Canada  7  years  ago, 
and  left  there  8  or  10  days  after  the  Caroline  was  burned  ;  I  have 
seen  McLeod  twice  before  ;  I  saw  him  once  when  1  came  from 
Canada  to  Geneva,  to  see  my  friends  at  St.  David's ;  and  }  saw  him 


i     J 


^  \Tfi 


\.-v- 


72 


GOULD  S    nEPOUTEn. 


.'  I ' 


moving   out  of  Canada,   at  Niagara  in  Canada 


,VJ 


it  was 


when 

about  a  year  before  I  left  Canada  that  I  saw  liiin  at  St.  David's  ; 
when  I  saw  hiin  at  Niagara  I  had  stopped  with  my  horses  to  "  bait" 
ihem  ,  it  was  cold,  and  I  went  into  the  bar  to  warm  myself.  There 
were  f>0  or  (JO  persons  there,  some  of  whom  had  weapons,  and  some 
h:ul  not;  wlien  1  was  in  the  tavern,  there  was  a  conversation  as  to 
w'i(»  had  shot  Durfee  ;  somebody  spoke  and  said,  "  where  is  the  man  1" 
.McLood  spoke  and  said,  "  here  he  is;  by  God  I'm  the  one  ;'  Tlien 
he  pulled  out  a  horseman's  pistol,  and  said  *'  that's  the  pistol  that 
shot  him  ;"  he  then  put  np  his  pistol,  and  pulled  out  his  sword,  and 
said,  "  there's  the  blood  of  a  damned  Yankee  ;"  there  was  blood 
on  the  sword  about  five  or  six  inches  long  ;  it  was  dried  on ;  I  then 
went  out  of  doors  to  the  shed  to  feed  iny  horses  with  oats,  and  he 
and  two  or  three  others  followed  me  out ;  they  asked  me  where  I 
was  moving  to  ;  I  said  to  Geneva  ;  they  asked  me  Avhy,  and  I  said 
my  friends  all  lived  there,  and  my  wife  was  not  satisfied  with  Canada. 
Some  of  the  company  Said  I  was  a  damned  rebel,  and  McLeod  said  I 
was  a  damned  Yankee,  and  should  go  no  further ;  they  were  under 
the  shed  some  time  talking,  and  at  last  McLeod  said  if  I  had  a  mind 
to  treat  the  company  I  might  go  on  ;  1  did  so.  I  said  I  had  nothing 
against  either  party  ;  we  went  into  the  bar  and  drank  till  it  amounted 
to  a  dollar,  which  I  paid,  and  was  then  allowed  to  go  ;  I  have  not, 
neither  before  nor  since,  heard  McLeod  say  any  thing  about  it,  nor 
do  I  know  any  thing  about  the  Caroline. 

Cross-examined  by  Mr.  Spencer. — I  did  live  about  6  miles  from 
Geneva ;  I  now  live  13  miles  from  Geneva.  I  left  Canada  on 
account  of  the  troubles ;  my  Avife  was  not  content  there,  and  my 
friends  kept  writhig  to  me  to  come  back.  I  lived  one  year  at  Long 
Point,  in  the  London  District,  in  Canada.  I  then  moved  to  Victoria 
and  set  up  shop ;  that  was  four  miles  from  the  Furnace,  where  I 
lived  a  year  ;  I  then  went  to  live  at  Round  Plains,  about  six  miles 
from  Simcoe  ;  I  lived  there  two  years  and  set  up  shop  ;  and  from 
thence  I  moved  to  this  country  ;  Round  Plains  is  eighty  or  one 
hundred  miles  from  Niagara ;  I  first  saw  McLeod  at  St.  David's, 
about  a  year  before,  at  a  place  where  I  stayed  all  night.  I  believe  he 
stayed  there  all  night ;  he  was  there  during  the  evening  before  1  went 
to  bed.  I  did  not  know  him  before  ;  but  1  heard  his  name  mentioned 
that  night ;  I  never  saw  him  after  until  I  saw  him  at  Niagara ;  the 
conversation  there  about  the  man  who  shot  Durfee  took  place  in  the 
bar-room  ;  there  were  twenty  or  thirty  in  the  bar-room  at  the  time  ; 
I  told  of  the  circumstances  and  the  conversation  there,  at  Canandai- 
gua  ;  I  cannot  mention  the  names  of  the  persons  I  told  it  to  ;  it  was 
talked  of  pretty  much  every  day  there  ;  I  was  asked  by  Dr.  Woodruff 
and  others  if  I  knew  any  thing  about  the  Caroline  ;  I  don't  remember 
whether  I  told  him  the  story  ;  I  live  now  at  the  third  place  since  I 
came  from  Canada  ;  lived  at  Phelps  ;  I  talked  of  these  things  there  ; 
my  neighbors  asked  me  some  questions  about  it,  and  I  told  the  same 
stoi-y  I  have  told  here  ;  I  talked  to — Sherman,  and  I  believe  he  wrote 
to  Lockport  about  it ;  I  was  subpoenaed  last  week  to  go  to  Lockport 
by  Sherman  ;  I  don't  know  that  he  is  one  of  the  patriots  there  ;  I  did 
not  go  to  Lockport.     I  got  a  letter  to  say  I  need  not  go  to  Lockport. 


I  was 

paid  n 
some  n 
nearest 
cross 
Niagar 
saw  sc' 
1  came 
came  t 
left  Sm 
Smiths 
ing  tha 


%. 


dn  ;  it  was 
t.  Diivid's  ; 
i  to  "  bait" 
If.     There 

and  some 
tion  as  to 
tlu'iiianr' 
[>;■'  Then 
pistol  that 
iword,  and 
Viis  blood 
in ;  I  then 
its,  and  he 
le  where  I 
and  I  said 
til  Canada, 
eod  said  I 
ere  under 
id  a  mind 
d  nothing 
amounted 

have  not, 
3ut  it,  nor 

liles  from 
anada  on 
!,  and  my 
r  at  Long 

Victoria 

where  I 

six  miles 

and  from 

or  one 

David's, 
telieve  he 
re  1  went 
lentioned 
rara ;  the 
ce  in  the 
he  time  ; 
'anandai- 
it  was 
V"oodrufF 
emember 
e  since  I 
fs  there  ; 

he  same 
le  wrote 

ockport 

re  j  I  did 

ockport. 


MCLEOD  S    TUIAL. 


73 


I  was  subpoenaed  to  come  here  two  weeks  ago  last  Monday ;  I  was 
paid  nothing  for  coming,  but  I  was  told  I  should  be  paid,  and  that 
some  means  would  be  provided  for  me  here  ;  Niagara  was  not  my 
nearest  way  to  this  State  ;  I  was  told  1  should  not  be  aUowod  to 
cross  at  Black  Rock  ;  I  got  a  "  pass"  at  Qiieenston  ;  it  was  at 
Niagara  Falls  that  I  saw  McLeod  on  the  north  side  of  the  road  ;  I 
saw  several  soldiers  before  I  came  to  that  house,  at  various  places  ; 
I  r.ame  in  sight  of  the  Niagara  River  two  or  three  miles  before  I 
came  to  the  Falls ;  I  arrived  at  the  Falls  about  1  or  '2  o'clock  ;  I 
left  Smithsville  that  morning  a  little  before  sunrise;  I  cu me  from 
Smithsville  to  the  Falls,  because  I  was  told  there  was  better  sleigh- 
ing that  way  ;  I  am  32  years  of  age  ;  I  heard  McLeod  called  by 
name  at  Niagara,  I  do  not  know  by  whom  ;  I  knew  him  by  sight,  and 
was  pretty  sure  he  was  the  man  I  had  seen  at  St.  David's  ;  I  heard 
his  name  called  under  the  shed  ;  he  was  called  "  Alexander,"  and 
then  somebody  called  him  "  Sandy  McLeod  ;"  the  man  who  spoke 
to  him  and  called  him  "Alexander,"  said,  "Alexander  McLeod,  is  it 
best  to  let  him  go  or  notl"  McLeod  said,  "If  he'll  treat  he  may  go." 
I  said  I  had  nothing  to  do  with  the  party,  but  as  to  treating  I  would 
say  notliing  about  it ;  then  one  of  them  said,  "  Sandy  McLeod,  let's  go 
in  and  take  something."  I  did  not  know  what  "  Saudy"  meant ; 
I  had  never  heard  it  before  ;  some  of  them  took  rum,  some  whiskey, 
I  and  some  brandy  ;  I  took  nothing  ;  at  St.  David's  I  heard  him  called 
"  McLeod  j"  there  were  several  drinking  there  ;  my  wife  and  one 
child  were  then  with  me ;  the  pistol  appeared  to  me  to  be  a  horse- 
rrian's  pistol ;  he  had  it  under  his  coat  in  a  bolt ;  I  believe  the  sword 
was  not  very  wide  ;  he  wore  it  hanging  to  his  side  ;  there  were 
other  men  there  with  swords,  and  I  think  one  man  had  a  pistol  in  a 
belt. 

By  the  Attorney  General — I  had  never  travelled  from  Smithville 
before  ;  the  country  is  not  thickly  settled  as  in  this  country,  and  I 
took  directions  from  others  ;  the  person  that  I  saw  there  was  the 
prisoner  ;  I  have  no  doubt  of  it ;  I  took  particular  notice  of  him,  for, 
as  he  used  me  in  that  way,  I  thought  if  ever  I  caught  him  on  this 
side,  I  would  try  and  use  him  in  the  same  way. 

Calvin  Wilson — Examined  by  the  Attorney  General. — I  live  in 
the  town  of  Wilson,  in  the  county  of  Niagara ;  I  have  seen  the  pri- 
soner at  the  bar,  and  am  somewhat  acquainted  with  him  ;  I  was  in 
Canada  in  1838  ;  I  owned  and  kept  the  ferry  from  Youngstown  to 
the  town  of  Niagara — it  is  the  lowest  ferry  on  the  Niagara  river  ;  I 
saw  the  prisoner  somewhere  between  the  4th  and  15th  .laniiary,  1838, 
at  the  house  of  James  Miller,  a  public  house  in  the  village  o(  Niagara  ; 
there  was  quite  a  number  of  people  Avith  him  ;  I  knew  a  young  man 
of  the  name  of  Raincock,  who  was  with  him  ;  I  saw  Mr.  Miller  pass- 
ing in  and  out ;  I  think  John  Mozier  was  there  ;  I  suppose  I  saw  a 
young  man  named  Meredith  that  I  wanted  to  see,  and  a  man  called 
Elmsley ;  they  Avere  in  a  sitting-room  in  the  public  house.  Mr. 
Raincock  brought  up  the  subject  of  the  destruction  of  the  Caroline, 
and  how  many  were  killed,  murdered,  or  bur|^ ;  this  Mr.  McLeod 
then  replied,  he  did  not  think  there  were  more  than  three  or  four  ; 
he  did  not  know  but  there  might  be  five.     One  thing,  he  said,  he 

10 


i 


it*- 


M' 


A  I' 


:  !■■';'■ 


■i.  ?> 


111-.,':  |i,  -J 


-•/ 


74 


GOULD  3    ttEPORTER. 


:'■)■']  I 


i'; 


i  • 

'i 

4 

^    ,"i 
V 
1 

i! 


did  know,  ihiit  one  "  damned  Yankee"  or  "  damned  rebel,"  got  shot 
on  the  wliarf  j  Mozicr  did  not  say  any  thing,  if  it  was  Mozier  ;  I  don't 
recollect  Elmslcy  saying  anything;  I  believe  I  am  sure  the  prisoner 
said  very  near  the  words  1  have  given;  I  have  no  doubt  the  prisoner 
is  the  man. 

Cross-examined  by  Mr.  Spencer — Raincock  had  formerly  boon  a 
custoni-honse  collector  at  the  Canada  side;  I  understood  Mr.  IMerc- 
dith  had  assumed  the  station  of  Mr.  Raincock,  whom  I  had  known  a 
year  and  a  half;  the  last  lime  1  saw  him  was  a  few  days  after  that ; 
I  recollect  the  time,  because,  for  above  a  week,  we  were  prohibited 
from  landing  ;  tlio  prohibition  commenced  on  the  6th  ;  I  had  never 
spoken  to  McLeod,  but  I  had  seen  him  frequently,  and  knew  him 
very  well ;  I  am  just  as  sure  that  I  saw  him  there  as  I  am  that  I  saw 
Raincock ;  and  as  sure  of  Raincock  as  of  McLeod  ;  I  am  sure  they 
were  both  there  ;  I  don't  know  that  I  said  any  thing  except  to  ask  if  Mr. 
Meredith  was  to  be  the  collector  of  the  port ;  I  inquired  from  Rain- 
cock ;  I  had  heard  that  Meredith  was  appointed,  and  Raincock  told 
me  he  was  ;  Raincock  did  not  run  away  from  Canada  before  Mere- 
dith was  appointed  ;  I  don't  think  he  ran  away  to  Europe  before  the 
Caroline  was  burned  ;  he  was  there  that  night ;  I  have  heard  that  he 
did  run  away  ;  I  think  I  saw  him  there  after  that  time  ;  I  believe  I 
cannot  tell  any  other  conversation  which  I  heard  there  ;  there  was  a 
good  deal  of  talking  ;  I  war  subpa:'naed  to  come  to  Utica ;  I  don't 
know  but  I  mentioned  at  the  time  that  I  had  heard  the  conversation  ; 
I  mentioned  it  to  Christopher  Herring ;  he  lives  at  Niagara ;  I  have 
not  taken  a  great  part  in  this  "  Patriot"  matter. 

The  Attorney  General  objected  to  questions  that  were  not  spe- 
cific. 

Mr.  Spencer. — To  the  witness. — Have  you  belonged  to  a  patriot 
lodge  1     That's  specific. 

The  Attorney  General  objected  to  the  question.  It  would  be  ne- 
cessary to  go  into  the  rules  and  regulations  of  patriot  lodges,  and 
their  objects,  if  such  questions  were  to  be  put. 

Mr.  Spencer  said  he  wished  to  know  whether  this  man  had  taken 
part  against  the  authorities  of  Canada,  that  he  might  show  the  state 
of  feeling  which  brings  these  witnesses  here. 

Judge  Gridley  advised  Counsel  to  change  the  form  of  the  question. 
The  obje  :t  could  be  gained  by  other  questions. 

The  examination  was  continued. — I  have  taken  some  interest  in 
the  movements  against  Canada ;  since  the  destruction  of  the  Caro- 
line, I  have  aided  the  Canadian  refugees  by  giving  them  what  little  I  had 
to  spare ;  at  a  rough  guess,  I  have  given  them  two  hundred  dollars ; 
I  have  entertained  them  at  my  house ;  some  were  my  namesakes. 

By  Judge  Gridley — Since  that  time  I  have  given  means  to  aid  in 
promoting  an  enterprise  against  Canada. 

By  Mr.  Spencer — Have  you  entered  into  a  concert  to  join  parties 
to  get  up  an  enterprise  against  Canada  1 

Judge  Gridley  informed  "the  witness  that  such  an  enterprise  was 
an  offence  against  the  laws  of  this  State,  and  if  the  witness  thought 
his  answer  would  trod  to  convict  him,  he  might  decline  to  answer. 
Witness — I  decline  to  answer,  then. 


M 

that  I 

Ml 

.Iif 

en  bl 

\\1 

Tl 

t'vcrl 

con\i 


MCLEOD  S   TIUAL. 


nil 


b1,"  got  shot 
/ier ;  I  don't 
the  prisoner 
the  prij^oner 

Tierly  boon  a 
)d  Mr.  Merc- 
had  known  a 
rs  after  that ; 
re  prohibited 
I  had  never 
d  knew  him 
n  that  I  saw 
Ti  sure  they 
to  ask  if  Mr. 
1  from  Rain- 
aincock  told 
cfore  Mere- 
Q  before  the 
3ard  that  he 
i  I  believe  I 
there  was  a 
caj  1  don't 
nversation  ; 
ara  j  I  have 

3re  not  spe- 

to  a  patriot 

ould  be  ne- 
odges,  and 

had  taken 
w  the  state 

le  question. 

interest  in 

the  Caro- 

littlelhad 

ed  dollars ; 

lesakes. 
to  aid  in 

oin  parties 

rprise  was 
s  thought 
answer. 


t 


]\Ir.  Si'KNCER — Are  you  a  member  of  any  secret  society,  other  than 
that  of  Freemasons  1 

Mr.  Hall  said  that  question  was  like  the  last, 

Jiuliro  (Ikiulkv  said  he  might  refuse  to  answer  for  the  reasons  giv- 
en before. 

WiTNEjijs — I  rf^fiise,  then. 

The  cruss-exaiiiiuiition  was  then  continued — I  don't  think  I  hav*; 
ever  conversed  with  any  body  on  the  importance  of  getting  McLeod 
convicted  ;  I  have  never  said  that  the  cunviction  of  McLt^od  -vould 
get  the  country  into  a  war  ;  1  have  never  expressed  to  any  one  a  de- 
sire to  have  McLeod  convicted;  I  should  be  willing  for  him  to  hav(» 
a  fair  trial. 

liy  the  Attornkv  Genkhai, — 1  think  I  have  been  desired  not  to  talk 
with  any  one  respecting  my  testimony  on  this  trial. 

Mr.  Si'ENCER — Have  you  entertained  Benjamin  Lett  1 

The  Attorney  Geneual  objected  to  the  question. 

Judge  GiiiDLEV — If  he  has  entertained  and  protected  him,  it  is  an 
ofl'ence,  punishable  by  indictment,  and  therefore  he  may  refuse ; 
otherwise  it  is  evidence,  as  it  shows  strong  feeling. 

Attorney  Ge.neral — If  he  answers  the  question,  1  may  ask  him 
questions  respecting  Lett's  history,  and  the  circumstances  which 
operated  on  his  sympathy. 

Witness — I  refuse  to  answer.  He  also  declined  answerinir  whe- 
ther  he  knew  Lett. 

Cross-examination  continued — Mr.  Buck  subpoenaed  me  here  ;  I  am 
rather  a  poor  man ;  when  I  contributed  the  $200  I  had  more  than  I 
have  now ;  I  have  a  family. 

The  Court  now  took  a  recess  for  dinner,  it  being  one  o'clock 

The  Court  was  again  opened  at  two  o'clock. 

Elijah  D.  Ejfner  examined  by  the  Attorney  General — I  live  at. 
Bufialo  ;  I  recollect  the  Caroline  steamboat  ;  I  was  on  board  the  boat 
while  she  was  at  Schlosscr  ;  I  went  to  endeavor  to  get  accommoda- 
tion for  the  night ;  this  was  in  the  afternoon  about  two  or  four 
o'clock  ;  I  said  to  the  persons  on  board,  how  do  you  expect  to  defend 
this  boat  if  she  should  be  attacked  !  The  reply  wag,  they  were  a 
ferry  boat,  and  were  not  allowed  to  carry  arms;  I  saw  persons  go  on 
board  with  arms,  but  I  did  not  see  that  the  boat  was  armed  |  I  was  a 
dept.  marshal ;  1  saw  no  arms  in  the  possession  of  citizens  ;  the  persons 
who  h-ul  arms  told  me  they  were  from  Canada ;  they  were  dressed 
as  Canadians ;  they  told  me  they  were  going  a  hunting ;  the  United 
States  Marshal  had  appointed  a  large  number  of  marshals,  and  I  sup- 
pose all  those  appointed  were  ready  to  go  on  any  duty  on  which  they 
might  have  been  directed. 

Cross-examined  by  Mr.  Spencer — I  don't  think  Navy  Island  was 
good  huntiniT  ground  then  ;  the  commander  of  Navy  Island,  General 
Van  Renssellaer,  was  reputed  to  be  an  American  ;  General  Suther- 
land was  there  occasionally  ;  I  don't  remember  how  many  stand  of 
arms  were  taken  from  Buffalo. 

The  Attorney  General  objected  to  evidence  being  given  on  this 
point. 

Mr.  Bradley  said  the  ATTbRNEv  General  had  endeavored  to  show 


■^     1 


* 


VitF 


!  1,1 


.1 


Ii 


iTi 


'{; 


id 


COVhV  S    nEI'OnTKH. 


I.y  tliis  wiliu'ss  that  inni-lmls  were  appointed  to  prosorvc  ncntnilitv, 
and  flint  tlioy  woro  t'lrioient  ;  and  tlio  prisoner's  Counscd  wished  to 
sliow  tlint  200  htund  of  arins  were  taken  from  Biiti'ulo  and  conveyed 
to  the  Island. 

CrosK-exaniination  rcsnnicd — Immediately  after  ue  heard  of  the 
movements  of  the  patrio(s  (iii  (»ur  shore,  and  before  the  hurning  of 
the  Caroline,  the  arms  were  stolen  ;  I  went  with  the  Sheriff,  and  we 
found  Sutherland  and  others  with  arms  in  their  hands  ;  the  Sheriff' 
took  tliem  and  other  arms  which  were  found  ;  they  were  half  a  car 
full  ;  1  have  only  hearsay  knowledge  that  tin;  arms  were  taken  back 
to  Hulfalo,  and  were  again  stolen  ;  those  were  the  only  arms  and 
munitions  of  war  that  I  was  aware  were  taken  froniBulfalo  ;  I  know 
nothing  but  newspaper  report  about  the  Batavia  arsenal. 

Sc(/i  lliuin(ti) — exumined  by  Mr.  Woods — I  reside  at  Vonngstown, 
Niagara  comity  ;  I  wns  i,,  Chippewa  in  December,  1837  ;  1  had  work- 
ed there  at  the  joiner  business  ;  I  was  there  when  the  Caroline  was 
destroyed  ;  I  knew  Alexander  jMcLeod;  I  had  seen  him  repeatedly  ; 
I  saw  him  the  night  that  the  Caroline  was  destroyed,  at  Mr.  Davis  s, 
between  seven  and  nine  o'clock;  I  saw  him  pass  through  the  bar- 
room ;  there  were  a  good  many  people  there  ;  he  passed  out ;  I 
could  not  say  that  he  was  armed  ;  1  saw  him  the  next  morning  near 
Mr.  Davis's,  a  little  before  sunrise.  There  was  not  a  crowd  of  men 
around  him  when  I  saw  him  ;  he  was  in  the  street  near  Davis's,  go- 
ing towards  Davis's  ;  it  was  very  early  in  the  morning  ;  four  men 
came  in  to  get  something  to  drink  where  I  attended  bar,  before  light, 
and  they  told  me  of  the  destruction  of  the  Caroline ;  I  went  dow'n 
to  hear  the  news,  as  Davis's  was  the  place  where  they  met. 

Cross-examined  by  Mr.  Spencer — I  live  now  at  Youngstown,  Nia- 
gara county  ;  I  attended  bar  for  Patrick  Cameron,  eighty  or  a  hundred 
rods  from  Davis's ;  I  went  to  Davis's  to  hear  the  news  ;  1  saw  a  great 
many  people  there  on  the  evening  I  have  mentioned ;  there  were  a 
great  many  soldiers  there  ;  the  reason  for  noticing  McLeod  was  that 
1  had  seen  him  arrest  people  and  the  way  in  which  he  did  it ;  and 
when  I  saw  him  I  noticed  him  ;  i  was  sworn  before  Squire  Bell  ;  I  did 
not  then  say  any  thing  about  seeing  him  that  morning ;  I  did  not 
then  recollect  it;  1  believe  I  mentioned  it  to  Mr.  Corson;  I  don't 
know  that  there  was  counsel  for  the  people  before  Squire  Bell ;  I 
swore  then  it  was  between  seven  and  eight  o'clock  that  I  saw  Mc- 
Leod that  night ;  I  never  was  able  to  give  any  thing  to  the  patriots; 
I  never  aided  in  secreting  Benjamin  Lett,  nor  did  I  ever  ferry  him 
across  a  river ;  I  decline  answering  whether  I  belong  to  a  secret 
society. 

The  Attorney  General  objected  to  the  question,  and  insinuated 
that  the  counsel  for  the  prisoner  w^as  endeavoring  to  elicit  testimony 
on  this  trial  for  other  purposes. 

Mr.  Spencer  said  it  was  not  the  first  time  that  the  learned  Counsel 
had  insinuated  that  we  were  taking  testimony  for  other  purposes ; 
and  I  rise  now  to  say  to  him,  in  presence  of  the  Court  and  this  audi- 
ence, that  I  am  here  defending  Alexander  McLeod,  as  his  Counsel, 
on  his  trial  for  life.  I  purpose  to  put  no  enquiry,  to  elicit  no  fact, 
which  has  not  a  direct  tendency  upon  this  question.     I  am  not  here 


1 


\-  V. 


€^ 


iiciitriility, 
vvi^slled  to 
conveyed 

rd  of  the 

liming  of 
i,  and  wu 
le  Sheriff 
hiilf  a  car 
liicn  back 
arms  and 
;  I  know 


ingstown, 
had  work- 
oline  was 
poatedly  ; 
••  Davis  s, 
I  llie  bar- 
id  out ;  I 
iiinij  near 
d  of  men 
ivis's,  go- 
four  men 
'ore  light, 
ent  down 

iwn,  Nia- 

i hundred 

w  a  great 

e  were  a 

was  that 

it ;  and 

11 ;  I  did 

did  not 

I  don't 

e  Bell ;  I 

saw  AIc- 

latriots ; 

erry  him 

a  secret 

isinuated 
3stimony 

Counsel 
urposes ; 
his  audi- 
Counsel, 
no  fact, 
not  here 


MCLEOD  3   THIAL.  t  i 

for  the  United  States  tioveiument,  to  ascertain  fiu-l.s  lor  the  iisr*  of 
the  (Jovcnunent,  which  the  Attorney  (Jeneral  would  imply.  If  I 
know  any  thing  about  the  (h-fi^utc  of  a  man  on  trial  f<»r  \us  life,  it 
depends  essentially  upon  the  very  kiu'l  of  testimony  which  we  are 
seekinir  to  elicit  ;  and  I  would  ask  the  Attorney  (Jencral  whither  he 
supposes  that  an  intelligent,  law-obscrv  iiig  people  will  as  readily  be- 
lifnc  those  who  are  contributing  iheir  means,  their  inlluence  and 
their  feelings,  in  behalf  of  those  who  would  make  war  upon  the  fron- 
tier, by  saeiificing  the  individual  now  on  trial,  as  they  would  .Mr 
KH'uer,  a  re[)Ula.ble  citizen  irom  Huliido  !  Does  any  man  believe  that 
Wilson  and  others  will  command  [)elief  like  EtI'ner  \  He  is  not  as 
well  ac(piaiiiteil  with  an  Oneida  jury  as  I  am,  who  believes  any  such 
thing.  Now,  sir,  1  propose  to  usk  this  ((uestion  of  this  witness  and 
some  others,  to  show  that  they  are  connected  throughout  with  this 
movement;  and  1  have  some  reason  to  believe  that  in  this  movement 
they  are  connected  from  the  forty-fifth  degree  of  north  latitude  to 
the  entrance  into  Lake  Huron;  that  the  witness  is  one  of  those  who 
have  been  engaged  throughout  in  this  movement,  for  the  purpose  of 
disturbing  Canada,  and  dislodging  it  from  the  British  Government, 
Tiie  objection  is  a  novel  one.  Does  the  Attorney  General  suppose 
that  Wilson,  the  keeper  of  the  ferry,  who  would  take  Benjamin  Lett 
back  and  forth  as  often  as  he  pleased,  without  lee  or  reward,  will 
command  respect  and  confidence  like  Mr.  EHner,  and  others  of  re- 
spectability 1  I  propose  to  show  by  this  witness  that  he  is  connect- 
ed W'lh  this  whole  movement — that  he  h;«s  contributed,  and  been  in 
concert  with  lliese  persons,  to  furnish  evidence  to  convict  McLeod — 
and  if  need  be,  it  could  be  proven  by  the  Attorney  General  and  Dis- 
trict Attorney — because  I  am  in  possession  of  the  facts,  that  they 
have  been  in  correspondence  with  them — giving  letters  to  both  these 
ofHcers,  as  to  McLeod's  crossing  the  river,  or  that  he  went  into  the 
boats.  May  we  not,  then,  show  that  they  arc  connected  with  this 
matter,  and  see  if  they  will  command  belief  !  I  will  not  shrink  in 
bringing  out  proof  in  favor  of  a  man  whom  I  believe  to  be  falsely  ac- 
cused ;  having  no  participation  whatever  in  the  affair.  I  do  not  be- 
lieve one  single  word  of  his  guilt,  and  I  will  convince  the  world  that 
I  have  warrant  for  my  belief  and  scepticism.  It  is,  that  these  men, 
who  have  been  acting  in  concert,  have  not  been  able  to  conunand  re- 
spect upon  me,  or  disbelief  before  this  jury;  and  if  they  would  tell 
the  truth,  they  would  say  that  it  is  their  heart's  desire  to  effect  the 
conviction  of  McLeod,  guilty  or  innocent — that  their  other  desires 
may  be  gratitied. 

The  Attofinev  GF.NEnAL  thought  the  remarks  of  the  learned  gen- 
tleman somewhat  extraordinary.  The  time  will  soon  come,  said  he, 
when  these  remarks  will  be  in  place  and  proper;  perhaps  they  are 
not  so  much  so  now.  He  would  advert  to  the  fact,  which  he  had 
discovered,  as  had  also  the  jury,  that  the  learned  Counsel  had  come 
here  prepared  to  believe,  that  every  witness  on  the  part  of  the  peo- 
ple, had  come  to  perjure  himself;  and  a  system  of  cross-examination 
has  been  adopted,  which,  under  any  other  circumstances,  would  not 
be  permitted.  He  had  not  objected  to  this  course  as  often  as  his 
duty  required,  though  he  had  observed  that  whenever  a  witness  took 


i! 


i 


I  ■  ' 


.i 


:f! 


m 


•i 


r  ■       ;  '■ 

■       ■•*,  ,"i 

■'f  r; 


m 


OOlILD'i   REPORTER. 


)t! « ': 


I  ■  ii 


* 


■:  m 


tho  Htand,  there  was  n  nncor.  Tho  lenriiod  pontlcnian  believed  in 
liis  heart,  nn  he  sa\>*,  weeks  atid  months  a^Mi — and  I  iini  of  ihe  same 
«i|)inii»n,  that  we  mi<j:ht  hiiii;,'  ihe  liest  man,  and  (il'tlie  best  repntation 


fori. 


in  the  eoimtrv,  and  his  eharacter  would  he  as 


M  h 


black- 


as  niff 


hi  ll 


le  mo- 


ur- 


menl  he  take'-t  the  witness  stand.  The  Attorney  (Jeneral  wonid  I 
ther  remark,  that  he  had  been  ufratilied  t(»  hear  the  learned  Coiinspl 
diKelaim  that  he  had  any  niterior  tdijeet,  either  t(»  procnrc  teHtiniony 
for  the  I'nited  States,  or  any  other  (tovernment;  and  he  Intped  the 
learned  {jfentleman  would  unite  with  him  in  endeavorintr  to  keep  the 
testimony  within  lejj^itimate  limits,  with  a  view  of  teHtinjr  the  know- 
ledge and  the  honesty  of  the  witness.  I  slionid  not  respcel  him,  if 
in  defondinp-  the  life  of  a  citizen,  he  did  not  go  to  the  extreme  of 
ilnty  required  of  him ;  but,  beyoiul  that,  I  hope  he  will  not  insist.  I 
will  further  remark,  that  it  seems  to  me  premiiture  to  comment  upon 
a  witness  for  the  pnr[)OHe  of  prejudicing  or  impeaching  him.  If  the 
witness  is  n  perjured  witness,  it  is  most  unaccountable  to  me  that  ho 
did  not  tell  the  easiest  lie  he  could  tell  to  convict  him.  When  we 
come  to  the  summing  up,  all  these  matters  can  be  brought  before 
the  jury. 

The  Court  remarked,  that  no  testimony  would  be  here  admitted 
which  was  not  in  strict  conformity  to  every  day  practice.  To  show 
that  the  feelings  of  a  witness  are  enlisted  is  entirely  proper — to  show 
that  he  has  been  active,  or  that  he  indulges  strong  feelings,  is  so  in- 
timately connected,  as  to  be  admissable,  under  suitable  restriction. 

Examination  resumed. — I  am  not  a  member  of  any  association 
against  the  Canadas. 

Judge  Ghidlev. — Have  you  been,  since  the  movements  against 
Canada  1 

The  witness  was  silent. 

Judge  Griulev. — You  are  not  asked  if  you  have  been  busy  in  get- 
ting up  such  an  enterprise,  but  whether  you  were  a  member  of  such 
an  association. 

Air.  Si'ENCER. — Have  you  heard  of  Hunter's  Lodges  ] 

I  have. 

Did  you  attend  them  1 

Yes. 

How  many  times  1 

Twice  or  three  times 

Where  1 

At  Niagara  Falls,  two  or  three  years  ago. 

Did  you  hear  anything  said  about  procuring  fire-arms  1 

I  did  not. 

How  did  you  pass  the  creek  to  Davis's  that  night — Did  you  give 
the  countersign  I  . 

I  did  not. 

By  the  Attorney  General. — Is  this  association  organized  for  the 
purpose  of  getting  up  war  against  Canada! 

I  am  not  sufficiently  acquainted  with  them  to  say. 

Are  those  Lodges  in  existence  now  1 

Not  that  I  know  of. 

Examination  continued. — I  came  back  to  this  side  to  go  to  work, 


h  % 


Jf 


4h 


%"  "^^ 


Iit'lii'vrd  in 
r  I  lie  mhiic 
L  repiitiiti«»n 
t|iI  llic  nio- 

would  fiir- 
('(I  CouiispI 
•  tcstiiuony 

hoped  th(; 
()  kfop  tilt' 
■  lli(>  know- 
H'Vl  liiiii,  if 
cxlrcinc  of 
)t  insist.  I 
iinent  upon 
ini.  If  the 
nie  that  he 

When  we 
ight  before 

e  admitted 
To  show 
ir — to  show 
;s,  is  so  in- 
striction. 
association 


ts   against 


sy  m  get- 
)er  of  such 


you  give 
jd  for  the 


to  work, 


MCLEOIi  S    TRIAL. 


70 


for  l»iisiiien«i  was  broken  up  Ny  the  troiiMf?.  ;  f  h:iv  no  douht  about 
seiiu;,'  till"  prisoner  tli;tt  ni<)rniii;j[  ;  it  was  early  in  the  inorning. 

Siir/cs  Yute^ — exaniined  by  Mr.  Woons. — I  reside  in  the  we(*t 
part  of  the  town  «)f  Clarkson,  Monroe  County  ;  1  lived  in  ('arnid.i 
when  the  Caroline  was  dc^^troyed,  al)u;ii  100  niih's  from  Toronto, 
down  the  Lake;  I  don'l  know  that  ever  I  saw  AfcFieod  to  know  him 
but  once  before;  that  was  in  iN'iajrara  v^no],  Fioekporl,  Xiatjara 
County  ;  i  believe  it  was  last  April ;  1  ttoiild  iiol  say  that  1  had  seen 
him  before  that;  I  have  been  to  (Jiieenslon  several  times;  1  was 
there  in  the  latter  part  of  the  wiutj'r  of  1S:V\  for  the  (irsttime; 
1  cannot  say  positively  that  I  saw  liim  ;  I  was  mi  the  public  house 
where  there  were  |)ersons  lakinjf  somclhinii^  to  drink  ;  one  said 
this  is  something  like  the  night  after  the  burning  of  the  Caroline  ; 
another  said,  yes,  damn  them,  we  gave  them  "  aleck,"  and  I  should 
like  another  job  of  the  same  kind  ;  I  was  told  .M'-Leod  was  the 
person  who  made  that  ob-iervation. 

Mr.  Si'i:.\cuit. — 1  hope  the  Jury  will  have  sense  enough  to  know 
that  is  not  evidence. 

.Tiidgc  GiiiuLKV  said  he  bad  heard  much  that  was  not  evidence, 
iuul  he  regretted  to  hera"  it.  Counsel  should  avail  themselves  of 
the  rules  of  evidence. 

The  witness  was  asked  if  be  saw  McLcod  there,  and  he  said  ho 
ilid  not  recollect  ;  he  did  not  appear  to  know  him  at  all. 

William  W.  Canwe/l — examined  by  Mr.  Woo.)3. — I  reside  at 
UufTalo  and  have  lived  there  nearly  three  years  ;  I  resided  at  Chip- 
pewa when  the  Caroline  was  destroyed  ;  1  know  McLeod  ;  I  had 
known  him  some  two  years  before  the  Navy  Island  affair  ;  I  saw  him 
at  Chippewa  about  9  o'clock  of  the  night  on  which  the  Caroline  was 
destroyed  ;  he  was  going  fvoni  Davis's  towards  Macklein's  ;  I  did  not 
see  him  again  that  night ;  I  saw  a  number  of  men  collected  together, 
Hnd  a  mail  with  whom  I  was  acquainted  told  me  there  was  something 
going  to  take  place  ;  I  thought  they  were  going  to  attack  Navy 
Island  ;  I  saw  the  Caroline  on  fire  ;  I  saw  McLeod  a  few  minutes 
before  sunrise  the  next  morning  on  Mr.  Davis's  stoop ;  there  was 
quite  a  number  there  ;  he  came  from  towards  the  barn  when  I  first 
saw  him  ;  I  heard  him  talking  with  some  others  about  going  to  cut 
out  the  Caroline  and  the  Avay  it  was  done  ;  they  talked  about  it 
being  done  pretty  cleverly  ;  they  talked  that  they  had  made  the 
damned  rebels  run  when  they  came  ;  there  appeared  to  be  two  or 
three  of  the  company  there  ;  one  said  he  saw  a  man  lie  dead  on  the 
dock  ;  and  he  added  "  damn  him,  he'll  never  come  back  to  annoy 
us;"  I  don't  know  whether  that  was  McLcod  or  the  man  that  was 
with  him  ;  he  had  a  pistol  in  his  hand  ;  it  is  three  miles  across  the 
river  there  to  Schlosf.er  ;  it  may  be  a  little  shorter  at  the  lower  end 
of  Navy  Island,  but  it  is  usually  called  three. 

Cross-examined  by  Mr.  Spencer — I  know  Mr.  Corson  ;  I  saw  him 
often  in  Canada.  I  left  Canada  in  March,  1838,  and  went  to  Buflalo. 
I  have  had  nothing  to  do  with  the  Canada  affairs  ;  I  follow  the  Lake  ; 
I  have  been  mate  of  a  steamboat  this  season  ;  I  talked  with  Mr. 
Corson  on  the  subject ;  I  asked  him  if  those  depositions  taken  in 
Canada  would  come  up  against  positive  witnesses  ;  he  said  he  did 


■'•^^ 


i 


■\i 


■:i  ,' 


U 


;  ^ 


■r 


'I 


:.t 


Wt 


h 


h. 


'    f 


!,r,  (■ 


•j>'      ) 


ao 


GOULD  S    KEI'ORTEK. 


l^ 


u  m 


not  know  :  he  then  askeJ  me  if  I  saw  McLeod  nnd  1  said  1  did  the 
next  morning  ;  he  told  me  that  he  saw  him  that  morning ;  I  only 
saw  McLeod  once  that  night;  as  he  went  through  the  door  I  knew 
him;  I  should  have  known  him  ten  feet  from  him  ;  I  had  been  told 
they  were  going  to  attack  Navy  Island  that  night,  and  I  had  some 
curiositjr  to  know  who  was  going ;  I  went  to  Davis's  to  see  what  was 
going  on  ;  I  went  on  the  stoop  as  McLeod  was  going  off.  There 
are  two  windows  in  the  bar  room  that  come  out  on  the  stoop  ;  the 
light  of  the  door  or  windows  shone  so  that  I  could  see  McLeod  ;  he 
went  off  pretty  nuich  in  front  of  the  door  :  I  started  the  next  morn- 
ing before  it  was  cleverly  light  to  hear  what  was  going  on  ;  I  went 
down  every  nu)rning,  almost,  during  the  Navy  Island  alliiir ;  I  saw 
Col.  Clark  and  Col.  McNab  ;  Col.  McNab's  quarters  were  in  Mack- 
lem's  duelling ;  I  noticed  jMcLeod  because  1  knew  he  had  been 
engaged  in  the  concern  ;  I  saw  him  in  company  with  others  who 
were  in  it.  Mr.  Smith  told  me  tl  e  night  before  that  thcv  v.'ere  going 
to  do  something  ;  I  thought  it  was  to  attack  Navy  Island.  I  saw 
McLeod  there — J.  did  not  see  him  with  any  arms  ;  I  saw  the  Captain 
of  the  Artillery  tiie  next  morning  or  the  mornintr  following  ;  1  ^aw 
Captain  John  Mozier  the  morning  after  the  Caroline  was  burned.  I 
saw  an  Englishman  they  called  Byron,  who  went  over. 

.'1/isun  D,  Qainb// — examined  by  Mr.  Hawlkv. — I  reside  in  the 
town  of  Columbus,  Warren  county,  Pa.  in  December,  1S37,  I 
resided  two  miles  from  Chippewa  village  :  I  recollect  the  destruction 
of  the  Caroline ;  I  then  knew  McLeod  by  sight  ;  J  was  not  intiinafcly 
acquainted  with  him  ;  I  think  I  saw  him  on  tlie  night  of  the  burning 
of  the  Caroline,  at  Mr.  Davis's,  in  Chippewa,  about  8  o  clock  ;  he  ' 
was  coming  out  of  the  bar-room  as  I  w^as  going  in  ;  I  saw  him  again 
the  next  morning,  about  sunrise,  near  Mr.  Davis's  house  ;  it  was  not. 
far  from  the  end  of  the  bridge  that  crosses  Chippewa  creek.  I  didn't 
know  any  body  with  him  ;  there  were  some  that  they  call  the  Cobuiijj' 
troops;  I  think  he  had  a  belt  on,  but  I  am  not  sure  that  he  had  aky 
thing  hung  to  it ;  some  one  came  across  the  bridge,  and  asked  how 
they  made  it  go  last  night ;  he  said  they  made  it  go  very  well  5  he 
said  we  killed  two  of  the  damned  Yankees  and  destroyed  the  boat ; 
he  then  remarked  he  had  Yankee  blood  on  his  sleeve  ;  I  saw  a  light 
that  night,  but  1  was  not  near  enough  to  know  it  was  the  light  of 
the  Caroline. 

Cross-examined  by  Mr.  Spencer — I  live  at  Columbus,  and  about 
three  or  four  miles  from  Lottsville ;  I  never  lived  in  Lottsville,  but! 
know  many  that  live  there  ;  the  patriot  war  was  the  principal  cause 
of  my  leaving  Canada  ;  I  did  not  take  part  in  that  matter,  nor  have  I 
since  ;  I  came  here  as  a  witness  at  the  solicitation  of  others  ;  Mr. 
Love,  at  Buffalo,  came  ;  he  was  at  my  house  a  week  ago  last  Friday ; 
1  had  never  known  him  before ;  I  had  a  letter  a  week  before  brought 
to  me  ;  the  Attorney  General  had  written  to  Mr.  Grosvenor,  who 
lives  near  Lottsville;  somebody  had  informed  the  Attorney  General 
that  I  knew  something  about  it  ;  Mr.  G.  jsvenor  is  under  indictment ; 
f  went  directly  to  Pennsylvania  when  I  left  Canada  ;  I  made  an 
affidavit  before  Squire  Woodin  ;  I  have  no  knowledge  of  ever  having 
told  this  story  to  Grosvenor  ;  I  told  it  to  others  ;  Mr.  Love  paid  my 


-4'inu. 


expense 
frt)'n  M 
had  a  pi 
was  in 
hay;  I 
McLeoi 
ing,  an( 
should 
next  mc 
which  I 
morning 
a  deman 
Pettits's. 
expect  t( 
know  w 
to  the  ('( 
about  su 
at. that  h 
By  th( 
my  busii 
there. 

Justus 

live  in  C 

the  nigh 

him  then 

'_8« ;  I  ha 

versation 

,    pewa,  no 

Caroline 

Vjery  nea: 

*'  gpiJie  fift( 

■    there  wi' 

boats ;  tl 

.   get  into  i 

■or  six  ft 

was  arin( 

went  out 

into  the  1 

above  wl 

were  reti 

this,  I  thi 

after  I  sa 

the  same 

the  boat, 

embarkei 

Mr.  Si 

Severn 

Judge 

be  foui.L 

would  bi 

gether  01 


h  '( 


lid  1  did  the 
ling ;  I  only 
door  I  knnw 
id  been  told 
.  I  had  some 
ee  what  was 

off.  There 
!  stoop  J  the 
iIcLeod  ;  he 
I  next  morn- 
on  ;  I  went 
idiiir ;  I  saw 
ro  in  Mack- 
e   had    been 

others  who 
■  were  S'oing 
ind.  I  saw 
the  Captain 
ring  ;  1  fiiw 
3  burned.     I 

side  in  the 
er,  1S37,  I 
destrnction 
t  intiinafely 
the  burning 
o  clock  5  lie  ■ 
r  him  again 
it  was-  not. 
sk.  I  didn't 
the  Cobai;g' 
he  had  asj-^ 
asked  how 
y  well  5  he 
d  the  boat ; 
saw  a  light 
he  light  of 

and  about 
sville,  but  i 
cipal  cause 
nor  have  I 
thcrs  ;  Mr. 
1st  Friday ; 
re  brought 
cnor,  who 
3y  General 
idictment ; 
made  an 
ver  having 
'e  paid  my 


MCLEOD  S    TRIAL. 


81 


expenses  to  Buffalo  from  Pennsylvania,  and  there  I  received  $10 
fro'n  Mr.  Hawley  ;  that  did  not  quite  pay  my  expenses,  but  I  have 
had  a  promise  of  having  my  expenses  paid  and  reasonable  wages  ;  I 
was  in  Chippew  the  day  the  Caroline  was  destroye  ',  with  some 
hay ;  I  think  the  government  had  the  hay  ;  I  don't  recollect  seeing 
McLeod  until  the  evening  ;  he  was  a  man  I  was  not  in  the  habit  of  see- 
ing, and  that  was  one  reason  why  I  recollect  seeing  him,  better  than  I 
should  those  I  was  iu  the  habit  of  seeing,  and  the  conversation  the 
next  morning  brought  him  to  my  recollection  ;  on  the  night  on 
w  Inch  I  saw  him  he  passed  out  from  the  bar  ;  I  was  down  the  next 
morning,  because  I  hoard  they  were  going  to  pay  money,  and  I  had 
a  demand  against  the  Commissary  ;  I  had  staid  that  night  at  Mr. 
I'ettits's,  about  a  mile  out  of  the  village  ;  he  is  a  farmer ;  I  did  not 
expect  to  get  money  from  the  Commissary  before  sunrise  ;  I  did  not 
know  who  came  np  and  spoke  to  McLeod  that  morning  ;  1  was  going 
to  the  Commissary's  office,  when  I  was  crossing  tiie  bridge  ;  it  was 
about  sunrise  ;  I  don't  know  that  I  expected  to  find  the  Commissary  in 
at  that  hour  of  the  morning. 

By  the  Court. — My  intention  was  to  be  at  the  office,  ready  to  do 
my  business  ;  I  did  not  know  but  there  might  be  some  of  the  clerks 
there. 

Justus  F.  P.  Stevens — examined  by  the  Attorney  General.  ] 
live  in  Orleans  county,  in  the  town  of  Gaines ;  I  was  in  Chippewa 
the  night  the  Caroline  Avas  destroyed;  I  know  the  prisoner  ;  I  sav/ 
him  there  that  night ;  I  have  known  the  prisoner  since  the  fall  of 
'86 ;  I  have  seen  him  six  or  eight  times;  I  have  never  had  any  con- 
versation with  hiin  since  the  first  time  I  saw  him  ;  I  saw  him  at  Chip- 
pewa, not  a  great  ways  from  ten  to  eleven  o'clock,  on  the  night  the 
Caroline  was  destroyed.  When  I  first  saw  him  that  night  he  was 
Vjery  near  the  Niagara  river.  There  is  a  canal  or  race,  and  it  was 
S.o'me  fifteen  rods  trom  the  head  of  that  cut  that  I  saw  him.  He  was 
there  with  a  number  of  others ;  they  were  about  getting  into  some 
boats ;  they  got  into  them  and  went  off;  I  think  I  saw  the  prisoner 
get  into  a  boat ;  1  am  positive  of  it.  At  one  time  I  was  within  five 
•or  six  feet  of  them;  part  of  the  men  were  armed;  the  prisoner 
was  armed  ;  they  rather  layed  up  the  river,  off  from  tlie  shore  ;  they 
went  out  of  sight ;  they  started  off  from  the  head  of  the  cut  to  get 
into  the  river ;  I  saw  three  boats ;  I  saw  the  prisoner  next,  a  little 
above  where  they  started  from,  pretty  ^lear  the  shore  ;  the  boats 
were  returning  to  the  shore;  there  were  some  rails  burning  there; 
this,  I  think,  was  not  far  from  three  o'clock,  and  four  or  five  hours 
after  I  saw  them  embark.  McLeod  came  ashore  there  ;  three  boats, 
the  same  number  that  went  off,  came  ashore  there ;  after  they  left 
the  boat,  they  went  to  Davis'  tavern  ;  the  point  where  McLeod  dis- 
embarked was  four  or  five  roc'^    love  the  head  of  the  cut. 

Mr.  Spencer  declined  cross-examining  him. 

Several  other  witnesses  were  called,  but  did  not  answer. 

Judge  Gridley  said  it  was  very  desirable  that  the  witnesses  should 
be  foui-J,  as,  if  possible,  this  cause  must  be  finished  this  week.  It 
would  be  very  unfortunate  if  the  Jury  should  have  to  be  kept  to- 
gether on  Sunday. 


11 


m 


/^f- 


.'W  -W  ■■•V' 


W' 


m 


If' 


I    ', 


fi^lr 


'T-j 


f  S'^ 


82 


GOULD  S    RKPORTER. 


5  ■■'.; 


ill  -:■  <  w 


^     U' 


lif 


I- 


m 


Mr.  Hawley  was  examined  to  show  that  due  diligence  had  been 
made  to  procure  persons  whose  names  had  been  mentioned,  us  wit- 
nesses. This  was  offered  that  counsel  in  summing  up  might  not 
make  use  of  the  non-production  of  those  persons  to  prejudice  the 
case. 

The  court  here  took  a  recess  for  tea. 

The  court  re-assembled  at  seven  o'clock  to  hold  a  night  session, 
for  the  purpose  of  completing  the  case  for  the  [irosecution,  if  possi- 
ble. It  was,  however,  understood  that  certain  Avitnesses  had  not  yet 
arrived,  for  whom  attachments  had  been  issued,  but  Judge  Gkidley 
said  he  would  take  their  testimony  when  they  did  arrive.  His  de- 
sire was  to  complete  the  case  that  week,  if  it  could  possibly  be  accom- 
plished. 

Mr.  Woods  statfed  to  the  court  that  sickness  in  his  family,  which 
was  likely  to  terminate  fatally,  called  him  home.  He  made  this 
statement  that  it  might  not  be  imagined  he  abandoned  his  duty  with- 
out good  and  sufficient  cause ;  but  he  vvas  satisfied  the  pubhc  inter- 
ests would  not  suffer  so  long  as  the  .case  was  in  such  hands  as  those 
of  the  counsel  who  were  associated  with  him. 

The  Attorney  General  regretted  the  necessity  which  called  the 
District  Attorney  home,  but  he  was  satisfied  the  cause  was  sufficient, 
and  that  it  was  his  duty  to  go.  He  should  feel  the  loss  of  the  Dis- 
trict Attorney's  valuable  assistance  in  the  progress  of  the  case,  and 
in  the  summing  up  ;  but  perhaps  the  District  Attorney  for  this  county, 
Mr.  Jenkins,  would  take  his  place. 

Judge  Gridley  said  hf  had  been  advised  of  the  state  of  Mr. 
Woods'  family,  an  1  lo  deemed  the  cause  sufficient  to  justify  his  ab- 
sence. 

Leonard  Jlnson  was  called  and  examined  by  the  Attorney  Gene- 
ral— I  am  a  carpenter,  and  live  at  Lockport ;  I  was  at  <  hippewa  in 
Dec.  1837,  and  remember  the  expedition  against  the  Caroline ;  in 
the  night,  the  sentinel  in  front  of  the  house  called  me  up,  and  I  saw 
the  light  of  the  Caroline  burning;  I  was  sleeping  at  Smith's  liouse  ; 
early  in  the  morning  I  went  over  to  Davis's,  and  saw  a  number  of 
persons  in  the  bar  room,  and  among  the  company  was  Mr.  McLeod ; 
I  knew  McLeod,  and  had  seen  him  frequently  ;  I  had  -•>eeu  him 
through  that  summei",  perhaps,  once  a  week,  or  oft^'ner;  he  was 
generally  known  ;  he  was  deputy  sheriff;  I  have  no  doubt  that  he 
was  there  that  morning ;  he  was  standing  by  the  side  of  the  l/ar  ;  I 
believe  the  lights  had  been  blown  out;  it  was  just  at  th*-  break  of 
day  ;  the  room  was  full  all  round  ;  it  was  a  large  room  ;  he  had  just 
been  drinking,  apparently  ;  he  had  hold  of  a  glass,  and  had  his  hand 
on  the  counter  ;  they  were  all  talking  of  the  expedition  they  had 
been  on  that  night,  and  which  had  done  the  greatest  crime ;  the  per- 
sons with  him  talked  as  if  they  had  been  on  the  exredition  ;  he  said, 
"  I  have  killed  one  damned  Yankee,  and  here's  his  blood,"  pulling 
out  a  pistol  and  exhibiting  it.  I  don't  recollect  any  thing  else  said 
by  him  ;  when  he  said  he  had  killed  a  damned  Yankee,  those  that 
were  there  did  not  contradict  him,  nor  express  surprise,  as  though 
that  was  the  first  time  they  had  heard  of  his  being  there  ;  when  the 
sentinel  called  me,  he  said,  "  they  have  cut  out  the  boat  and  set  her 


^1 


on  fir( 
liinc 
ness ; 
count 
ter's 

Cro 
pcop! 
in-,  1 
fee! ; 

ffOlll 

wards 
West 
went 
Lundy 
pcwa, 
tavern 
Decern 
has  be 
I  went 
year  ; 
and  vei 
the  mo 
then  f(J 
ton  thn 
way  I 
liorsebi 
pretty 
get  a   i 
come  (] 
Lewist 
living  r 
in  1837 
over  at 


MCLEOU  S    TRIAL. 


83 


ncc  had  been 
ioned,  us  wh- 
ip might  not 
prejudice  the 


night  session, 
ition,  if  possi- 
3s  had  not  yet 

UDGE  GhiDLEY 

•ive.  His  de- 
bly  be  accom- 

family,  which 
de  made  this 
lis  duty  with- 
3  public  inter- 
lands  as  those 

ich  called  the 
was  sufficient, 
3s  of  the  Dis- 
the  case,  and 
r  this  county, 

state  of  Mr. 
ustify  his  ab- 

ORNEY  Gene- 

Chippewa  in 

Caroline  ;  in 

up,  and  I  saw 

aith's  iiouse  ; 

number  of 

r.  McLeod ; 

id  .-iecn    him 

ler ;    he  was 

oubt  thfli  he 

>f  'he  \mr  ;  I 

vf  break  of 

he  had  just 

acJ  his  hand 

311   they  had 

ne ;  the  per- 

on  ;  he  said, 

»d,"  pulling 

ng  else  said 

those  that 

,  as  though 

! ;  when  the 

and  set  her 


,1 


J 


on  (ire,"  or  words  to  that  cflect ;  I  drove  Mr.  Smith's  team  at  tliat 
lime  ;  when  tiie  oiilbrcuk  took  place,  there  was  no  work  in  my  busi- 
ness; lama  native  of  liie  United  States,  and  was  born  in  Albany 
county;  I  now  work  at  my  business;  I  am  employed  by  Judge  Por- 
ter's son. 

Cross-examined  by  Mr.  Si'ENCEr — I  have  no  connection  with  the 
people  on  this  side  wlio  are  acting  against  Canada ;  I  have  feel- 
inc,  but  I  suppose  it  is  only  such  as  any  American  citizcui  would 
feel ;  1  was  examined  on  this  subject  before  S(iuire  Bell  ;  I  removed 
from  Albany  county  at  six  years  of  age  to  Tioga  County,  after- 
wards to  Ohio  when  I  was  1!)  years  of  age  ;  I  afterwards  travelled 
West  to  Indiana  and  3Iicliigan  ;  I  was  there  about  three  weeks  ;  I 
wont  on  to  Detroit  and  crossed  over  into  Canada ;  I  came  out  at 
Limdy's  Lane  on  the  Niagara  River,  and  from  there  I  went  to  Chip- 
pewa,  where  1  arrived  in  January,  ISIH;  I  boarded  at  Philo  Smith's 
tavern,  and  worked  at  my  trade  till  the  outbreak,  about  the  1st  of 
December;  I  was  a  journeyman  and  worked  for  Mr.  Corson,  who 
has  been  sworn  here;  I  stayed  in  Canada  till  September  of  1838; 
I  went  then  to  Ohio  and  remained  there,  in  Lorraine  County,  about  a 
year  ;  1  worked  at  my  trade  there ;  I  then  came  back  to  Lockport, 
and  remained  there  till  last  spring,  when  I  went  to  Niagara  Falls  ; 
the  morning  I  ft  it  heard  McLeod  was  taken  I  was  at  Lockport,  and 
then  for  the  first  time  I  told  what  I  knew  about  it ;  I  went  to  Lewis- 
ton  that  same  night ;  Lewiston  is  21  or  22  miles  from  Lockport,  the 
way  I  went  ;  I  arrived  there  about  10  o'clock;  I  went  alone  on 
horseback ;  it  was  about  the  10th  of  November ;  the  roads  were 
pretty  bad ;  I  went  as  a  witness  at  the  request  of  Mr.  Bell ;  I  did  not 
get  a  subpcrna,  but  I  got  a  line  from  Philo  Smith  desiring  me  to 
come  down  ;  I  first  told  of  this  matter  the  morning  before  I  went  to 
Lewiston;!  told  it  to  Philo  Smith  just  as  I  do  now ;  he  was  then 
living  at  Lockport ;  he  is  the  man  who  kept  the  tavern  at  Chippewa 
in  1837 ;  Philo  Smith  testified  in  this  matter  ;  we  had  not  talked  it 
over  at  all;  I  went  over  to  Davis's  the  morning  I  have  mentioned, 
out  of  curiosity,  the  same  as  i^ny  body  would  have  done  ;  I  believe 
I  spoke  to  no  one  ;  they  were  talking  about  the  expedition,  but  I 
'^armot  tell  what  was  said  more  than  I  have  mentioned  ;  I  saw  the 
blood  on  the  breech  of  the  pistol. 

By  the  Attorney  General — I  went  to  Ohio  in  pursuit  of  employ- 
ment. 

Attorney  General — If  the  Court  please,  I  rest  here. 

Mr.  Spencer — I  wish  the  Attorney  General  to  understand  my 
views  <>i  lliis  case,  if  he  rests,  he  cannot  call  evidence,  to  the  main 
charge  afterwards,  but  only  in  reply. 

The  Attorney  General — I  have  endeavored  to  come  up  to  the 
^•ule,  and  bring  all  my  evidence  up  to  it.  I  shall  only  call  witnesses 
lor  the  purpose  of  rebutting  testimony,  though  other  facts  may  come 
out. 

Mr.  Spencer  said  it  must  be  understood  that  no  cumulative  evi- 
dence could  be  afterwards  adduced. 

The  Judge  ^aid  it  was  very  desirable  that  the  cause  should  pro- 
ceed as  fast  as  possible.     He  called  upon  Mr.  Spencer  to  proceed. 


it' r 


W:   1 


ll 


'     \fl 


r^'M 


•■. .  IV 


'  r 


1;    ivisi 


I 


Hii 


ick 


:^' 


Mcleod's  trial. 


85 


.r   <i 


MR.    SPENX'ER  S   OPENING    SPEECH. 

Gentlemkn  01'  THE  JuRV  :  I  will  endeavor  to  open  this  defence  in  the 
mdiine;  which  has  just  been  suggested  by  his  honor  the  Circuit  Judge,  be- 
cause it  is  precisely  the  way  in  which  every  defence  should  be  opened, 
and  from  wliich  the  jury  can  best  appreciate  tlie  evidence  to  be  brougiit 
before  them.  I  need  scarcely  say,  that  this  is  a  case  of  no  ordinary  cha- 
racter and  importance.  It  is  the  first  of  the  kind  you  have  ever  tried,  or 
in  all  probability  will  b^  again  called  on  to  investigate.  A  solemn  duty 
has  devolved  upon  you,  and  I  have  not  the  smallest  doubt  that  it  will  bo 
fulK'  -nd  faithfully  discharged.  The  defence  which  we  intend  to  make  is 
two-iold,  and  I  will  plac  i'  before  you  in  its  double  aspect, 'thus  early,  in 
order  that  the  court  may  be  prepared  to  direct  our  conduct  of  the  case  as 
it  may  think  proper.  In  the  first  ])laco,  then,  we  will  inquire  whether  any 
murder  has  been  committed  at  all  by  anybody  ;  and  secondly,  whether,  if 
that  question  be  answered  in  the  aflirmative,  Alexander  McLeod  was  one 
of  the  murderers.  The  first  portion  of  our  defence  we  shall  conduct  with 
all  deference  to  the  opinion  of  the  Supreme  Court,  wliich  <he  learned  Attor- 
ney-General  referred  to  so  fully  in  his  opening.  We  are  no  strangers  to 
that  opinion,  nor  to  the  questions  presented  in  the  argument  which  drew 
forth  that  opinion :  and  if  the  learned  gentleman  opposite  really  supposes, 
as  he  said,  that  the  counsel  of  the  prisoner  sustained  a  rebuke  when  that 
opinion  was  delivered,  I  avail  myself  of  this  early  opportunity  to  say,  that 
the  counsel  have  never  felt  the  justice  of  that  rebuke,  and  it  yet  remains  to 
i)c  shown  that  that  opinion  administerrd  any  just  rebuke.  There  are  some 
things  in  that  opinion,  which,  when  I  lirst  heard  them  \Nithin  this  very 
circle,  fell  upon  my  ear  as  a  little  strange  ;  but  there  is  also  very  much  of 
that  opinion  to  which  I  listened  with  great  pleasure.  Tluit  document  is  ably 
written :  it  contains  the  evidences  of  great  research  and  profound  legal 
learning,  and  it  may  present  the  sound  law  of  the  case.  But  whether  it 
■l>c  the  sound  law  of  the  case  or  not,  and  whether  the  learned  Judge  who 
now  presides  on  this  trial  will  so  regard  it,  I  know  not,  but  I  feel  bound  to 
conduct  this  case  on  the  broad  grounds  of  what  I  consider  the  true  princi- 
ples of  the  law  as  applicable  to  it.  We  shall  then,  in  the  first  place,  after 
a  few  more  facts  shall  have  been  made  to  appear  in  evidence  before  you, 
insist  that  there  can  be  no  such  offence  as  that  of  murder  proved  as  grow- 
ing  out  of  the  destruction  of  the  steamboat  Caroline.  And  here  allow  me 
to  say,  that  in  the  whole  course  of  my  reading — limited,  I  admit,  it  has 
been — I  never  knew  of  a  similar  case.  It  is  now  for  the  first  time  that  we 
see  an  individual  icting  under  the  authority  and  by  the  orders  of  the  govern- 
ment whoso  subject  he  was,  having  been  put  on  trial  for  obeying  those 
orders.  This  is  indeed  a  remarkabh?  occurrence,  almost  at  the  end  of  the 
rirst  half  of  the  19th  century  !  As  the  counsel  of  Alexander  McLeod  then, 
I  shall  have  occasion  to  contend  that  there  can  he  no  such  thing  as  murder 
charged  against  any  of  the  persons  who  formed  the  expedition  sent  to  de- 
stroy the  Cproline.  And  k  t  me  here  add,  that  the  question  as  to  whether 
thn.t  act  was  a  justifiable  procedure  or  not  on  the  part  of  the  British  Pro- 
vincial  Government  cannot  be  entertained  by  you.  The  facts,  gentlemen, 
to  be  adduced,  will  show  that  this  party  which  made  the  attack  upon  the 


'■>:      H-  I 


^ 


y: ' 


'     ,1  ji 


-e. 


-<V- 


80 


GOULD  S    REPORTER. 


"ilHi 


m4. 

..,jT 


Caroline  consisted  of  tho  crews  of  seven  boats,  six  of  them  containing 
eigtit  persons  and  one  containing  nine,  wliicli  were  inaiie  np  of  IJrili.sii  pro- 
vinciiil  soldiers  then  on  duty  at  Ciiip|)('\va,  or  Uritish  uaval  ofllcers  then  on 
duty  at  (Jliipp(  \va  ;  that  Colonel  McNah  ordered  the  expedition  ;  tliat  he 
acted  under  tin;  authority  of  Sir  l-'rancis  Bond  1  lead,  tiic  provincial  governor, 
who  directed  tiiem  to  seek  out  and  destroy  the  (Jaroline,  which  ho  then  be- 
lieved to  he  in  the  employment  of  the  party  on  Navy  Island,  who  had  there 
raised  the  standard  of  revolt,  fortified  their  camj),  and  oj)encd  their  batte- 
ries on  the  Canadiiui  shore.  When  this  party  was  thus  circumstanced,  and 
at  a  season  of  the  year  when  navigation  by  any  other  vessel  was  extremely 
perilous,  that  boat  came  down  for  tho  express  ])urposc  of  being  employed 
by  the  occupants  of  Navy  Island,  and  in  their  service  that  boat  was  from 
day  to  day  engaged.  The  boat  was  then  as  liable  to  destruction  at  Schlos- 
Kcr  as  if  she  had  been  moored  at  Navy  Island,  so  far  as  respected  indivi- 
dual responsibility.  Indeed,  it  was  now  proved  that  Schlosser  was  tho 
very  rendezvous  of  the  party  of  tho  invaders  of  the  island,  or  of  those  who 
were  continually  carried  over  to  the  island.  We  shall  contend,  thi^n,  that 
tho  boat,  while  at  Schlosser,  was  there  for  as  hostile  a  purpose  as  if  at  Navy 
Island,  and  that  the  British  authorities  were  therefore  as  much  justified  in 
destroying  her  there,  as  if  she  had  been  at  the  latter  place;  and  I  ask 
every  American  citizen  if  he  would  have  regarded  the  destruction  of  the 
boat  at  Navy  Island  as  an  ofTence  ?  Might  not  the  island  have  been  justi- 
fiably invaded,  and  the  persons  on  it  taken  prisoners  and  slaughtered,  with.- 
out  the  persons  so  invading  it  being  chargeable  with  the  crime  of  murder, 
or  any  other  otfence  against  the  laws  whatever  ? — such  proceeding  being 
well  known  to  and  recognized  by  the  laws  of  war.  Whether  >the  insur- 
gents on  the  island  were  right  or  wrong,  i.s  wholly  immaterial.  Whether 
the  British  Government  had  been  tyrannical,  and  had  driven  these  people, 
to  desperation,  is  wholly  immaterial.  The  Canadian  subjects  of  Great 
Britain  had  seen  fit  to  revolt,  and,  with  the  aid  of  American  citizens,  had 
made  open  war  in  Car'-^i ;  and  whether  they  were  right  or  wrong,  it  was 
a  war,  and  all  the  rignts  and  immunities  that  belonged  to  those  engaged 
in  war,  pertained  to  tliem.  This  is  the  broad  ground  on  which  we  rest  the 
case.  We  will  show  to  you,  gentlemen,  that  the  federal  government  of 
the  United  Stales  took  this  view  of  the  case  ;  that  they  took  cognizance 
of  this  offence,  and  demanded  reparation  from  the  government  of  Great 
Britain,  and  that  at  a  later  day  the  British  government  acknowledged  the 
responsibility  of  that  act,  and  declared  that  it  was  done  in  obedience  to  tlie 
British  provincial  government,  and  justified  it  as  a  necessary  act  for  the 
protection  of  the  subjects  of  Great  Britain,  then  lix'ug  in  Canada.  The 
fc  '  ral  government,  then,  under  the  constitution,  had  taken  full  cognizance 
of '  le  whole  matter,  en  bracing  not  only  the  invasion  of  our  territory,  Ijt 
also  the  destruction  of  ihe  steamboat  the  property  of  one  of  our  citizens, 
and  the  taking  away  of  the  life  of  anothc".  All,  all  those  considerations 
were  presented  to  t!io  notice  of  Great  Britain,  and  our  government,  mind- 
ful of  the  nation's  rights  and  ready  to  vindicate  them,  had  demanded  full 
and  entire  satisfaction  for  the  injury  which  our  country  has  received.  But 
the  individual  who  formed  part  of  that  public  force  of  Great  Britain  stands 
excused,  as  he  always  must,  from  all  the  consecjuenccs  of  his  action  under 
those  orders.  As  an  individual  offender  ho  is  not  answerable  to  any  tribu- 
nal. Passing  from  this,  I  will  now  take  up  another  branch  of  the  case,  in 
which  I  am  well  persuaded  the  intelligent  Judge  who  presides  here  and 


^;] 


I 

.  V  f 


# 


*i*-v... 


'WW 


MCLEOD  S   TRIAL. 


87 


.> 


mvself  sliall  hiivn  no  fliflbrenco  of  opinion — wiiatevor  may  bo  our  rospi^ftivc 
views  of  tlic  otiier  fcntiu'i;  of  the  c;i.so,  and  tli:it  is  tlu-  point  as  to  wln'tiicr 
McLcod  hud  any  thiii<r  to  do  witli  tliis  transaction  or  not.  I  am  willinjj; 
txnd  I  intend  lo  call  your  altontion  more  minutely  to  the  evidence  sustttining 
that  irroinid  of  defence,  than  to  that  ])ertainin<i;  to  the  other  position  which- 
wc  have  assumed  ;  because  the  evidence  sustaining  the  latter  is  not  in  any 
degree  susceptible  of  dispute.  Every  word  of  evidiuice  ii'ivrn  on  the  part 
of  tlie  prosecution  has  i:dne  to  establish  our  case,  and  wliat  is  yet  to  come 
will  only  confirm  what  has  been  shown  already.  But  the  |)oint  to  which 
I  call  you  now  is,  that  Alexander  iMcLeod  had  no  more  to  do  with  the  fle- 
striiclion  of  the  Caroline  or  with  the  killing  of  Durfec  than  either  of  you, 
gentlemen  of  the  jury — not  any  more.  And  1  speak  with  knowledge  of 
the  facts,  and  will  satisfy  you  that  what  1  have  now  said  is  fully  and  lite- 
rally  true.  1  confess  ciiat  1  am  somewhat  surprised  by  the  results  of  this 
..jyrial  which  we  have  yet  seen.    I  anticipated  much  greater  strength  on  the 

[i^mrt  of  the  prosecution.  [  will  say  to  the  Attorney. (Jcneral,  if  1  am  ho- 
nored with  his  audience — I  will  say  to  his  associate  that  I  am  astonished 
at  the  feebleness  of  their  cause,  conducted  as  it  has  been  with  such  an  ar- 
ray of  talent.  Without  making  c.ny  extravagant  pretensions  to  that  sort  of 
skill  in  matters  of  this  kind,  yet  f  would  venture  fearlessly  to  enter  on  the 
argument  on  the  evidence  as  it  is  now  before  you,  without  the  slightest 
dread  of  a  verdict  against  my  client.  But  I  am  not  at  liberty  to  play  at 
haphazard  in  such  a  case  as  this.  I  am  here  to  defend  a  man  whose  life 
is  tli'ar  to  him  as  yours  is  to  you,  and  to  whom  you  are  bound  to  give  a  fair 
trial,  a  patient  hearing,  and  a  faithful  and  impartial  verdict,  just  as  much 
as  if  he  were  an  American  citi/cn.  I  ask  no  favor  at  your  hands  because 
he  is  a  foreigner.  We  expect  nothing  whatever  from  your  hands  on  ac- 
count of  the  difficulty  in  which  your  verdict  may  place  the  governments  of 
the  two  countries.  We  ask  only  that  you  will  listen  to  the  evidence,  cau- 
tiously weigh  it,  and  then  pronounce  whether  Alexander  McLeod  is  a 
murderer  or  not.  First,  then,  we  will  lay  before  you  a  mass  of  evidence 
taken  by  commissions,  under  the  order  of  the  Supreme  Court,  and  which, 
singular  as  it  is,  have  been  attended  to  in  the  execution  by  gentlemen  on 
both  sides.  And  here  let  me  remarK  that  the  opposite  counsel  have  en- 
joyed all  the  advantages  which  a  perfect  knowledge  of  our  whole  case  from 
beginning  to  end  could  afford,  whilst  we  have  been  kept  in  most  profound 
ignorance  of  theirs.  Yes,  had  they  enclosed  their  case  in  the  hecatombs  of 
Egypt,  it  could  not  have  been  more  religiously  concealed  from  our  view. 
^;None  of  the  new  witnesses,  who  are  relied  on  to  sustain  the  prosecution, 

r^>;fvent  before  the  grand  jury.  There  may  be  a  few  exceptions,  but  I  believe 
my  assertion  will  be  found  to  be  correct.  And  permit  me  to  add,  that  in 
my  judgment,  if  this  case  were  tried  as  often  as  the  moon  changes,  new 
witnesses  could  be  found  to  prove  the  case  as  strong  as  it  has  been  now 
presented  on  this  trial.  But  the  commissions  have  been  returned,  and  the 
evidence  ^ill  be  read  b  fore  yoi>.  With  a  great  deal  of  pains  and  perse- 
verance, iny  respected  colleague  succeeded  in  finding  some  men,  more  or 
less,  who  were  on  board  each  of  the  boats  which  formed  the  expedition 
against  *he  Caroline.  Twelve  or  so  of  our  witnesses  are  of  this  descrip- 
tion. First,  on  the  part  of  the  defence,  we  have  Colonel  McNab,  who 
proves  tiae  issuing  of  the  orders  to  Captain  Drew,  the  individual  who  had 
charge  of  the  expedition.  Colonel  McNab  states  that  the  expedition,  when 
planned,  was  a  profound  secret,  unknown  to  any  except  himself  and  one 


V3 


?sMiK 


''  \m 


:    ^1 


98 


GOULD  S    REPORTKR. 


hj' 


or  two  confidential  ofTiotirs.  Tliti  party  coIlLctcil  on  the  shore,  and  went  on 
biKird  tlif  ljo;ils,  iiiifl  then  the  ptirpusc  of  tli(3  cxiiodition  wus  d<!clart'd,  ulum 
tlic  party  was  uii  its  way  to  accoinpli.sli  its  objc^cl.  VVhun  the;  oxpiidition 
returned,  Colonel  McNab  ordered  a  list  ol"  all  the  men  ciigajftid  in  the  ox- 
peditioii  to  l)t:  made  out,  intci.tl'iijf  to  bestow  U[ion  them  somf;  mark  of  a|)- 
probation  for  tlieir  hardihoci'  .  id  suecessful  conduct  of  the  expedition. 
And  here  i(!t  me  say,  that  iiowever  we  may  regard  this  transaction,  tiio 
Provincial  (.Iov(  rnm(;nt  of  (Janada  looked  on  that  as  a  gallant  achievement, 
{{ut  whether  they  vighttully  or  wn^ngi'iilly  appreciated  the  nialertaking  is 
perfectly  indillerent  to  us.  To  return,  Iiowever :  in  the  lists  thus  made 
out,  the  name  of  McLeod,  either  Alexander  or  Angus,  does  not  appear. 
They  refused  to  give  us  that  list,  lor  very  proper  reasons,  in  order  tiiat  no 
person  should  be  cx[)Osed  by  its  publication,  except  who  were  already  well 
known,  or  who  had  vohnitarily  coine  forward  and  avowed  thems(dves. 
Colonel  McNab  also  says  that  he  was  on  tlw!  shore  when  the  expedition 
embarked,  and  that  he  did  not  see  McLeod,  whom  he  knew  most  intimately. 
Then  every  boat's  crew  were  accpiainted  with  each  other,  and  they  respec- 
tively testify  that  McLeod  was  not  among  them.  And  it  was  surely  likely 
that  the  niemben:  of  every  little  party  knew  each  other.  The  boat  which 
Drew  was  in  had  nine  men  in  it,  and  he  says  that  on  the  return  of  th(i  boat 
to  the  Canada  shore  all  the  names  of  the  men  were  taken  down,  and  the 
name  of  I\lcLeod  is  not  amongst  them.  Captain  Drew  further  says  that 
he  never  heard  that  McLeod  was  in  that  expedition.  He  says  that  he 
knew  every  man  in  his  boat,  and  that  McLeod  was  not  in  it.  Other  per- 
sons who  went  in  some  of  the  others  were  also  examined,  and  say  that 
McLeod  was  not  in  them.  And  you  and  I  know,  gentlemen  of  the  jury, 
that  those  who  were  going  in  small  boats  on  an  attacking  party,  to  stand 
or  fall  together,  or  be  perhaps  cast  into  the  current  of  the  Niagara,  would 
be  likely  to  know  each  other.  And  when  they  say  that  Alexander  McLeod 
was  not  one  of  the  party,  you  will  believe  it.  This  is  in  substance  the 
evidence  which  we  have  taken  on  commission,  and  that  will  be  first  laid 
before  you  in  our  defence.  You  will  listen  to  that  reading  with  attention, 
although  it  may  not  be  so  satisfactory  as.  the  evidence  of  witnesses  who 
will  be  before  you  personally.  We  shall  next  have  the  satisfaction  of 
producing  living  witnesst;s,  and  more  than  one  who  will  speak  of  what 
they  themselves  knew  and  what  came  mider  their  own  observation.  These 
witnesses  speak,  of  the  matter,  under  circumstances  wliich  admitted  of  no 
mistake.  And  we  will  also  show  you  how  easily  men  can  sometimes  be 
mistaken.  One  of  the  witnesses  (Wilson)  will  give  you  a  conversation  with 
Raincock  about  the  t;  ^^e  of  the  burning  of  the  Caroline.  Now  we  will 
show  you  that  Ilaincocli  left  that  (country  in  the  early  part  of  the  year,  be- 
tween the  15th  and  "20th  of  .)une.  A  respectable  man,  named  Hamilton, 
who  was  married  in  January,  1837,  and  left  Canada  for  England,  and  was 
gone  until  the  fall  of  1837,  then  came  back  before  the  outbreak  in  Ca- 
nada, and  this  man  Raincock  had  been  then  gone  so  long,  that  Hamilton 
was  asked  had  he  not  seen  him  while  he  was  in  England.  With  respect 
to  Quinby,  we  will  show  you  that  a  short  time  ago  a  letter  was  received 
by  the  postmaster  here,  from  a  gentleman  of  respectability  in  Warren 
county,  Pa.,  who,  h(;aring  of  Quinby's  intention  to  come  here  as  a  witness, 
and  knowing  his  character,  wrote  a  warning  as  to  his  worthlessness  ;  and 
acting  on  this  info  -mation,  1  wrote  to  the  worthy  citizen  there  wIk  has 
come  here  to  .speuK  of  Quinby's  character.     This  Quinby,  you  recollect, 


tarry 
nada. 


#f>- 


""  'i. 


MCLEOD  S   TRIAL. 


^'J 


and  went  on 
iclurod,  wlicn 

i(!  expedition 
!d  in  iIk;  ox- 
mark  of  ap. 
i  (.'Xpodilioii. 
iisactioi),  tlio 
ticliiovenient. 
iul(;rtakiii<^^  is 
s  tluis  made 
iiut  appear. 
:)i'(Irr  liiat  no 
already  well 
tliemselves. 
le  expedition 
st  iiiliinatelv. 
they  respee- 
surely  liivoly 
!  boat  wliici) 
fu  of  tiio  boat 
own,  and  the 
ler  says  that 
says  that  ho 

Oilier  pcr- 
and  say  tliat 
1  of  the  jury, 
irty,  to  stand 
agara.  would 
ider  IvIcLeod 
lubstance  the 
be  iirst  laid 
ith  attention, 
itnesses  who 
itisfaction  of 
)cak  of  what 
ition.  These 
mittcd  of  no 
J  me  times  be 
ersation  with 
ow  we  will 
the  year,  be- 
d  Hamilton, 
md,  and  was 
jreak  in  Ca- 
at  Hamilton 
With  respect 
k'as  received 

in  Warren 
as  a  witness, 
ssness  ;  and 
n'e  whf  has 
iu  recollect, 


is  the  fellow  who  sold  his  load  of  hay,  and  went  to  got  pay m(  lit  before 
day-light  of  the  cornnussary.  We  will  then  show  you,  gcnilcnien,  that 
iMcLeod  was  at  Chippewa,  in  Davis's  tavern,  on  the  day  of  the  di'struriinn 
of  the  ( 'arolinf! ;  that  he  went  to  bed  early,  as  he  was  fatigued,  having  hein 
one  of  till'  party  wiio  row(;d  round  Navy  1n1:iikI.  1  le  reniained  in  l)i'(l  till  sun- 
down, wIkmi  h<!  rose.  VVe  will  then  show  you  that  ho  went  in  eouipniy  with 
Mr.  William  I'ress,  then  living  at  iNiagani,  and  now  keeping  the  lluniillon 
llousi;.  in  I  lamiltou,  (.'anada  ;  and  ill  his  comiiaiiy  McLeod  left  Davis's  ta- 
v<nMi,  and  rode  to  Stamford,  about  i'our  miles  distant,  in  a  very  bad  state 
of  the  roads,  where  In;  got  out  of  his  wagon,  eonchiding  that  he  wnuld 
tarry  over  night  with  ('apt.  John  .Morrison,  a  rcitircal  Uritish  otli(ur  in  (.'a- 
nada.  H(;  hdt  Cliippewa  in  company  with  Mr.  I'ress  after  dark  on  that 
day.  Well,  li(!  got  out,  and  went  into  Capt.  Morrison's,  and  we  will  show 
by  that  ge'nileman's  inidenee  that  Mefjeod  came  to  his  house  ;  ihal  lliey 
sat  and  eonverseil  till  aUnit  mitluight ;  tliat  tliey  then  retired  to  ImmJ  ;  that  he 
((!apt.  Morrison)  rose  early  in  tlie  morning,  as^was  his  eustom  ;  that  Mrs. 
Alorrison  arose,  ami  their  son,  a  little  lioy  of  lo  years  of  age  ;  that  th(!  lad 
went  down  to  th(!  gate  in  front  of  the  house  ;  that  he  saw  there  two  gen- 
tlemen, who  stop[)ed  as  they  passed,  and  asked  tiie  lad  to  call  his  fatli'M'; 
that  Capt.  Morrison  went  down  and  there  found  souks  one  wh(jin  I  do  nut 
now  remember,  with  a  Colonel  Cam(!ron,  who  lives  at  Toronto,  and  is  an 
elderly  genthunan,  and  is  not  able  to  be  here,  but  whom  we  have  examined 
by  commission  ;  that  these  gentlemen  asked  Morrison  if  he  had  heard  tin; 
iie-ws,  and  on  receiving  his  reply  in  the  negative,  they  told  him  of  the 
burning  of  the  Caroline,  and  gave  him  as  a  trophy  a  fragnKuit  of  the  bn;u, 
which  they  had  found  in  an  eddy  below  the  Falls.  Cajitain  Morrison  re- 
turned to  the  house  and  found  Mr.  McLeod  at  his  toilet,  and  to  him  he  told 
the  intcilligenco  he  had  just  received;  and  McLiuid  immediately  called  ibr 
his  horse,  in  order  to  go  aw.ay,  but  Mrs.  Morrison  re([uested  him  to  wait 
for  breakfast,  which  he  did.  and  then  mounted  his  horse  and  rode  to  Chip- 
pewa. Mrs.  Morrison.  wl':o  is  an  intelligent  lady,  will  tell  you,  among 
Other  circumstances,  that  McLcod's  boots  were  wet  when  ho  arrived  there 
the  evening  before,  and  were  set  near  the  kitchen  lire,  and  were  still  there 
and  dry  in  the  morning.  The  son  will  also  tell  you  that  he  brought  the 
horse  out  of  the  stable,  and  that  McLeod  went  away,  on  it. 

There  is  also  a  step-daughter  of  Mrs.  Morrison's,  who  did  not  sec  McLeod 
when  he  first  came,  but  saw  him  soon  after  at  supjier,  and  also  the  next 
morning,  and  fixes  the  time  beyond  all  controversy. 

To  ri;cur  to  the  evidence  of  Mr.  Press.  1  It;  said  he  was  at  Chippewa 
but  once  ;  that  he  lived  at  Niagara  and  kept  a  public-hou.se,  and  that  the 
day  he  went  to  Chippewa  was  on  \.\\v.  29111  December,  and  that  he  knows  it 
was  that  day  b(icause  he  took  passengers  with  him,  wl'.ose  names  are  in 
his  books,  and  al.so  the  amount,  four  or  five  dollars,  which  they  paid  him 
for  taking  them  to  Chippewa.  He  will  al.so  tell  you  that  he  heard  of  the 
destruction  of  th(^  Caroline  on  the  morning  of  the  'J9th  of  December,  so 
that  the  time  will  be  fixed  beyond  all  dispute. 

This  evidence  takes  McLeod  from  Chippewa  the  evening  of  the  night  on 
which  the  Caroline  was  destroyed,  and  leaves  him  at  Morrison's  in  the 
morning.  When  ho  left  Morrison's  he  made  towards  the  Falls.  A  little 
way  from  the  Pavilion,  he  fell  in  company  with  a  Mr.  (jilkinson,  who  was 
in  the  army  of  the  government.  He  and  McLeod  rode  from  the  Pa- 
vilion to  Chippewa,  and  the  destruction  of  the  Caroline  was  a  subject  of 

12 


I 


i'l 


uo 


fJOm.l)  .S    RF.roilTKR. 


convprsation  IkjIwc-  .acm  ;  for  it  lm<l  been  agrocil  between  tlinm  tlint  if 
any  lliinj^  wus  to  l)o  dono  in  rclution  to  iicr  tlicy  woiiUI  pnrticiimtc  in  it. 
^n(l  now  it  liad  luicn  ilonc^  and  tiiiy  lin  i  notliiiig  to  tlo  with  it.  Tlioy 
rodo  then  up  t\ni  Niagara  river  to  wiuirr  Captain  U.sIkm*  lived,  and  whilt; 
tlioy  were  {^oing  aloiiir  the  shore  of  the  Niagara  rivt'r,  \hvy  were  fired  at 
repeatedly;  ten  or  a  lUi/.cn  shots  luiiiig  fired  at  ilieiii,  ;nid  one  (»f  them  was 
picked  up  and  given  to  Mc.LiMjd  when  paswinji;  back.  While  going  from 
the  pavilion,  they  met  another  person,  'John  Mcljean,  now  of  New  York, 
lie  was  riding  towards  iNiagara  falls  and  met  M<"Leoil,  whom  he  knew 
well.  Mr.  MeLean  had  not  gone  to  rest  when  ho  heard  the  cry  of  fire, 
and  looked  out  and  saw  the  flames. 

If  tiiis  testimony  is  siiflicient,  we  will  be  relieved  from  embarrass, 
ment  as  to  the  question,  whether  tliert;  was  any  murder  romniitted  at  all. 
And  you,  as  American  citizens,  will  rejoice  that  you  can  ac(|uit  Alexander 
McLeod  as  an  innocent  man  ;  and  I  know  it  will  rejoice  you,  as  honest 
men,  to  he  able  to  say,  Alejander  McLeod  is  as  innocent  of  that  imputed 
murder  as  any  man  among  you. 

If  this  evidence  is  sullicient,  what  becomes  of  the  evidence  on  which  the 
prosecution  rests.  You  must  cither  say  that  those  witnesses  fabricated  their 
.stories,  or  their  heated  imaginations  kid  them  into  error, — while  on  our 
side  the  witnesses  saw  McLeod,  not  at  the  break  of  day  nor  in  the  dark- 
ness of  midnight,  but  were  with  him  from  the  time  ho  left  Chippewa. 
With  them  it  is  either  perjury  or  all  truth,  and  if  it  is  all  truth  you  can 
have  no  difficulty  in  pronouncing  thfit  verdict  due  to  the  nation  of  which 
he  is  a  subject,  and  due  to  the  American  people.  And  with  that  verdict, 
wc  will  say,  we  are  satisfied. 

At  the  close  of  the  learned  gentleman's  remarks,  the  court  adjourned 
until  Thursday  morning  at  15  minutes  to  8  o'clock. 


.lud; 


m» 


t-' 


'V^'-^' 


Mi  44, 


j»n 


MCLEOD  S   TRIAL. 


01 


I  *l 


FDCUTir   l>AV  S  rUOCKlUHNOS. 

Jiuliff  ("ii'idli'y  vfmnrkcd,  dii  tlic  opi'iiinu;  <A'  tlu;  cnurl,  tli.'it  as  tlio  very 
carnrst  desire  expre-si  d  liy  him  Id  teniiiiiaic  the  cuiise  lliis  week,  iiii|^lil 
possibly  iiidiK'o  the  euiiiisc  I  on  cMcli  sidt!  to  restrict  theinsolvos  perhaps 
more  riosely  than  if  he  had  not  ihado  sndi  nii  iiitini:itii)ii,  he  woiihl  remark, 
tiiat  however  desiral)Ie  it  might  Ix-  to  eniichide  ih  •  e.nisi'  this  week,  and 
however  nnxioii-^  he  w  :s  to  avoid  kiMpinij  the  jury  in  this  cast!  out  over 
SiUidiiv,  ho  did  not  wisii  tlie  foiuisel  :-;o  to  limit  themselves  as  to  ho  doinj^ 
injustice  to  eitlit  r  side,  lie  presumed,  of  course,  they  would  make  ('very 
reasonnblo  effort  to  close  tlio  cause  this  W(  ik,  but  il'  that  coulil  not  Ik- 
effiTted  without  doinu;  such  injusti'-n,  the  cu.>.'  wl>u1iI  oC  necessity  go  over 
into  the  (ollowinij;  week. 

Mr.  Hall  said,  that  he  had  no  doubt  that  the  counsel  on  both  sides  wore 
extremely  anxious  to  brin^f  the  trial  to  a  (dost!  this  week.  It  was  a  trial 
of  very  great  imptirtanee,  and  orK;  which  iiad  excited  such  universal  in- 
terest, that  the  coinised  might  i\;v\  bound  to  take  greater  latitude  in  the  pro- 
secution of  it  than  under  ordinarv  ■ircuinstaiicM's.  It  was  expected  of  them, 
that  all  the  cireumslancfjs  conm  cted  with  the  transaction  would  be  fully 
developed,  and  the  people  would  be  disap[)ointed  if  they  were  not.  For 
his  own  part  he  would  endeavor  to  throw  no  obstacle  in  the  way  of  bring, 
ing  the  cause  to  a  close  at  the  earliest  possible  hour,  but  it  was  nujre  than 
doubtful,  if  the  desire  of  all  parties  to  close  it  this  week  could  bo  attained. 

The  counsel  for  the  defence  than  commenced  the  examination  of  wit- 
nesses on  behalf  of  the  accused,  and  culled  to  the  stand 

Alexander  C.  Hamilton,  Esq.,  who  was  examined  by  Mr.  Spencer,  to 
contradict  one  of  the  witnesses  for  the  prosecution,  who  dc^posed  to  a  con- 
versation  between  him  and  Raincock  and  McLeod,  after  the  alfair  of  the 
Caroline. 

I  reside  at  Niagara,  U.  C,  and  have  resided  there  since  the  summer  of 
'35,  excepting  some  partial  absence.  1  knew  William  Raincock  very  well ; 
he  was  deputy  collector  of  the  customs  at  Port  Niagara  ;  caimot  say  the 
exact  period  he  left  Canada,  but  he  was  not  a\  Niagara  in  the  month  of 
November,  18;37  ;  I  rccolh'ct  the  date  from  my  own  marriage,  which  took 
place  about  that  time.  I  went  to  England  in  January  '87,  and  when  I  re- 
turned  in  the  beginning  of  November,  or  the  last  of  October,  he  was  not 
there.  I  took  my  wife  with  m(;  to  England;  1  had  bei'u  very  intimate 
with  him  ;  to  my  knowledge  he  has  not  been  in  Canada  since,  and  could 
not  have  been  there  without  my  knowing  it,  I  think  ;  he  went  to  I'ingland 
I  understood  when  he  left  Canada ;  the  outbreak  occurred  after  I  returned 
from  England. 

Cross-examined — He  was  deputy  collector  of  customs  at  Niagara;  the 
office  is  just  opposite  the  ferry  ;  the  principal  collector  was  Thomas 
McCormick — is  so  still ;  Raincock  did  not  do  buisness  at  the  office  of  the 
principal  collector  ;  McCormick  only  sees  tliat  tlie  accounts  arc  correct ;  I 
had  known  Raincock  since  the  summer  of  '35  ;  he  was  a  native  of  England ; 
he  was  purser  of  the  steamboat  Col)()urg,  when  I  first  knew  him  ;  I  cannot 
say  which  party  he  belonged  to,  and  I  dont't  know  that  he  took  part  with 
the  insurgents ;  to  my  knowledge  he  was  not  there ;  I  can't  swear  he  was 
oot  in  Canada  of  course ;  there  were,  previous  to  my  leaving,  two  parties — I 


.:Jf 


!^^ 


.i\ 


'Il 


'^!' 


4  i' 


I 

i;  ■'    ' 
1 '  •  ! 


h 


h  .  Ill 

'4 


r,'   ■ 


^. 


IMAGE  EVALUATION 
TEST  TARGET  (MT-S) 


1.0 


I.I 


1^ 


|2.5 


2.2 


IL25  i  1.4 


2.0 


1.6 


Photographic 

Sciences 
Corporation 


33  WEST  MAIN  STREET 

WEBSTER,  N.Y.  14580 

(716)  872-4503 


-^^ 


V 


lV 


\\ 


6^ 


^Jg 


"^i^  "^^ 


'<!^ 


i/. 


92 


GOULD  S   REPORTER. 


% 


K& 


cannot  call  them  however  violent  parties  ;  the  violence  was  confined  to  the 
legislature.  1  know  Mr.  Papincau ;  he  was  then  in  parliament;  there  had 
Ixien  violence  at  an  election  in  Montreal,  and  the  military  were  called  out, 
and  fired  on  the  people  at  that  election.  I  know  Mackenzie  by  reputa- 
tion  J  1  know  the  historical  parts  of  his  career.  There  was  in  U.  C.  a 
high  state  of  political  feeling.  I  do  not  know  Ruincock's  political  views: 
do  not  know  that  some  who  were  openly  in  favor  of  the  government,  were 
privately  advising  the  reformers — at  least  to  my  knowledge — though  I 
have  reason  to  believe  that  such  was  frequently  the  case.  I  went  to 
England  in  the  packet  ship  Hibcrnia  in  February  and  remained  till  Sep- 
tember  1837,  and  returned  via  Liverpool  in  the  Rob  Roy.  I  reached 
New  York  in  October ;  don't  know  that  any  steam  packets  ran  then ;  don't 
remember  that  the  Great  Western  was  running,  and  if  she  had  been  I 
should  have  taken  a  packet ;  can't  be  exact  as  to  the  period  of  my  return  to 
Niagara.  It  was  the  last  of  October,  or  November  early.  I  resided  with 
Ruincock  at  one  time  ;  was  intimate  with  him :  did  not  reside  with  him  at 

_,  .lim  every 
have  come 


the  immediate  time  I  left  Canada,  but  was  in  the  habit  of  seein<r 
I  crossed  the  ferry  very  frequently.     Raincock  might 
to  the  United  States  without  my  knowledge,  and  mijiht 


nay  ; 
over 


have 


been 
here  then  for  what  I  know.  I  heard  of  him  however  in  England.  John 
McCormick  is  now  at  Niagara.  I  remember  an  affair  taking  place  at  St. 
Dennis,  between  the  British  and  insurgents  ;  can't  fix  the  date  of  that, 
however ;  I  think  I  was  then  in  Upper  Canada,  but  I  might  have  heard  of 
it  in  the  United  States  :  don't  know  if  it  took  place  before  or  after  my  return. 
I  recollect  the  destruction  of  St.  Eustache,  but  can't  say  what  time  that, 
was.  The  movement  on  Toronto  took  place  in  December.  I  cannot 
of  my  knowledge  say  when  Raincock  left  Canada:  it  must  have  been 
between  January  and  November,  1837.  He  had  no  family  in  Canada: 
he  was  not-  married.  I  have  taken  an  active  political  part  in  Canada  in 
favor  of  the  government :  I  hold  no  office.  I  am  a  lawyer  ;  I  was  living  at 
Niagara  in  a  military  capacity,  when  the  affair  took  place  at  Chippewa:  I 
was  in  Lower  Canada  on  business,  and  to  see  the  method  of  conducting  a 
judicial  investigation  of  this  kind  I  varied  my  route  and  came  by  this 
way,  and  when  here  I  was  summoned  as  a  witness  ;  I  am  not  here  at  the 
request  of  the  prisoner  or  his  counsel ;  was  anxious  to  see  the  proceedings 
of  the  court,  and  had  no  other  reasons  for  coming  here. 

Mr.  Spencer.  Did  you  ever  hear  that  Raincock  was  in  England  ?  Ob- 
jectcd  to  by  Mr.  Hall  as  being  too  vague  to  be  admitted  as  evidence  con- 
tradictory  of  another  witness. 

The  court  said  the  witness  could  speak  of  what  was  notorious  generally 
at  the  place,  but  individual  statements  would  be  improper. 

Mr.  Spencer.  Well,  what  was  the  notorious  report  about  him  at  Niagara  ? 

That  he  had  absconded  for  debt. 

The  court.  How  notorious  was  this — was  it  limited  to  a  few  persons, 
or  general  in  the  community  ? 

It  was  general.  What  is  the  population  of  Niagara  ?  From  750  to 
1000  inhabitants. 

Mr.  Hall.  Is  not  imprisonment  for  debt  in  vogue  both  in  Canada  and 
in  England? 

It  is,  sir,  I  believe. 

Mr.  Hall.  How  then  could  a  man  escape  prosecution  or  imprisonment 
for  debt  by  fleeing  from  Canada  to  England  ? 


%'■!' 


:^*;  \. 


MCLEOD  S   TRIAL. 


93 


ifined  to  the 
;  there  had 
!  called  out, 
by  rcputa- 
in  U.  C.  a 
tical  views : 
iment,  were 
— though  I 
I  wont  to 
led  till  Sep. 
I  reached 
then ;  don't 
had  been  I 
my  return  to 
resided  witii 
with  hiin  at 
g  him  every 
have  come 
;  have  been 
land.     John 
place  at  St. 
late  of  that, 
ive  heard  of 
r  my  return. 
U  time  that, 
.     I   cannot 
t  have  been 
in  Canada: 
n  Canada  in 
was  living  at 
Chippewa ;  I 
ond  acting  a 
ame  by  this 
t  here  at  the 
proceedings 

and  ?     Ob- 
vidence  con- 

us  genemlly 

at  Niagara  1 

ew  persons, 

rom  750  to 

Canada  and 

nprisonment 


I  cannot  say  precisely.  The  expedient  is  often  resorted  to,  perhaps  be- 
cause of  the  inconvenience  rather  than  the  impossibility  of  pursuit  and  pro- 
secution. 

I  am  acquainted  with  McLeod :  I  am  not  a  relative  of  sheriff  Hamilton. 

Cross-examined — I  do  not  know  that  McLeod  has  made  any  attempt  to 
escape  from  arrest ;  on  the  contrary,  I  know  that  it  was  very  important  for 
him  to  have  been  in  Niagara,  where  he  was  arrested.  I  know  that  persons- 
go  from  Canada  to  England,  and  come  from  England  to  Canada,  to  escape 
arrest  for  debt. 

Hetolett  Lott — I  am  a  farmer,  reside  at  Lottsvillc,  Warren  Co.,  Pcnn. 
and  am  also  a  justice  of  the  peace.  Know  Anson  ]J.  (iuinby,  and  have 
known  him  since  1838.  Know  the  reputation  of  Quinby  for  truth  and 
veracity — it  is  bad,  I  would  not  believe  him  on  his  oath. 

Cross-examined — Was  not  subpcEnacd  here.  Came  to  attend  as  a  wit- 
ness at  the  request  Mr.  Spencer.  He  wrote  to  a  Mr.  Wetmorc  in  Warren 
about  me.  Can't  say  how  he  came  to  write  to  Mr.  Wetmore.  Never 
wrote  to  Mr.  Spencer  on  the  subject,  but  have  written  to  McLeod.  Do 
not  know  him  and  never  saw  him  before.  Know  Levi  Boardman  residing 
near  Quinby's — his  reputation  is  passably  good.  He  is  a  man  of  truth 
and  veracity.  Quinby  is  a  farmer,  and  sometimes  makes  shingles.  Do 
not  reside  in  the  same  town  with  him,  but  meet  him  very  frequently. 
I  know  O.  L.  Monroe,  he  lives  about  2  miles  from  Quinby.  His  reputa- 
tion  is  good.  I  think  neither  he  nor  Boardman  would  swear  falsely. 
I  know  David  Wooding,  he  is  a  farmer  and  justice  of  the  peace.  He  is  a 
respectable  man.  If  they  v;ere  to  swear  that  Quinby's  character  was 
good  and  that  he  was  credible  on  oath,  1  should  say  they  were  very  much 
mistaken.  1  am  here  because  I  thought  justice  required  it.  I  was  afraid 
there  would  be  wrong  evidence  against  McLeod.  Know  nothing  what- 
ever of  the  transaction  except  what  I  have  seen  in  the  papers.  Recollect 
being  a  witness  in  the  same  cause  with  Quinby  on  one  occasion  in  our 
county.  The  common  pleas  of  our  county  was  held  in  September  at 
Warren — that  was  the  last  session.  Was  not  an  important  witness  in  the 
cause.  Was  summoned  on  two  or  three  cases  in  that  court.  When  I 
wrote  to  McLeod,  told  him  that  I  thought  there  would  be  no  difficulty  in 
impeaching  Quinby's  evidence.  Was  requested  to  take  the  deposition  of 
Quinby,  and  the  person  who  brought  the  letter  asked  me  to  state  whether 
Quinby's  character  was  good,  and  as  I  could  not  say  it  was,  the  deposi- 
tion of  Quinby  was  not  taken  before  me  ;  but  when  I  heard  it  had  been 
taken  elsewhere,  T  then  wrote  to  McLeod.  Expect  my  expenses  here  will 
be  paid  by  Mr.  Spencer ;  he  has  assured  me  they  should  be.  Have  my 
expenses  paid,  and  be5'ond  that  I  am  to  receive  nothing  that  I  know  of. 
There  are,  perhaps,  10  or  12  families  in  Lottsvilc,  and  the  greater  part 
of  them  have  told  me  the  character  of  Qufnby  was  not  good  for  truth  and 
veracity.  How  far  does  Quinby  reside  from  you?  About  four  miles. 
How  many  of  the  population  of  your  village  have  you  heard  speak  of 
Quinby's  bad  character  ?  The  greater  share  of  them  ;  Mr.  Low  speaks 
badly  of  him,  also  my  brothers  James  and  Daniel  Lott.  One  man  in  our 
village  differs  from  us.  What !  one  entire  man  in  your  village  ?  Yes,  sir, 
one  entire  man.  Do  you  and  Quinby  range  on  the  same  side  in  politics  ? 
No  sir,  we  are  politically  opposed.  Have  never  had  any  personal  difficulty 
with  Quinby.  Knew  nothing  of  him  before  the  period  I  have  mentioned, 
the  summer  of  '38. 


i'-'-f' ' 


If  , I'd' 


^Ojri- 


94 


GOULD  S   REPOaT£R. 


<^.- 


'A" 


Lansing  Wetmorc — Reside  in  Warren,  Pa.,  and  know  Quinby.  Have 
known  him  abont  two  years  this  full.  Have  ]i(;ard  that  his  reputation  i'or 
truth  and  veracity  lias  been  universally  bad.  Have  iieard  quite  a  number 
speak  of  him ;  and  from  what  I  know  of  him,  I  would  not  believe  a  word 
he  said,  on  oath  or  otherwise,  unsupported  by  other  testimony.  He  has 
been  a  pretty  constant  attendant  at  courts  as  a  witness. 

Cross-examined — Reside  about  26  or  27  miles  from  Quinby.  Am  a 
lawyer  and  practice  there.  Attended  the  last  term  of  the  common  pleas, 
and  was  engaged  in  the  cause  where  Quinby  was  a  witness.  He  testi- 
fied on  the  other  si'lo.  Quite  a  number  of  people  from  his  vicinity  were 
there  at  that  time.  His  testimony  was  rather  unimportant.  No  witnesses 
were  called  to  impeach  Mr.  Quinby.  Came  here  at  the  request  of  Mr. 
Spencer.  When  1  heard  that  Quinby  had  been  summoned  as  a  witness, 
1  wrote  to  the  postmaster  here  requesting  him  to  inform  McLeod's  counsel 
of  Quinby 's  character,  and  soon  after  received  a  letter  from  Mr.  Spencer, 
requesting  me  and  Mr.  Lott  to  come  here  and  testify.  I  heard  Quinby's 
brother  speak  very  hard  of  him.  [The  witness  here  mentioned  the  names 
of  many  neighbors  who  had  spoken  of  Mr.  Quinby  in  derogatory  terms — 
he  underwent  a  long  and  rigid  cross-examination  as  to  the  circumstances, 
connections,  &;c.  of  Quinby,  which,  however,  had  no  other  bearing  on  the 
case,  than  to  show  personal  motives  in  attempting  to  impeach  Quinby's 
testimony.]  I  am  opposed  in  feeling  to  the  transactions  of  the  patriots,  and 
I  am  opposed  to  the  great  length  to  which  the  affair  of  the  CaroHne  was 
carried.  It  is  possible  I  have  expressed  an  opinion  that  McLeod  ought 
.  not  to  be  tried. 

Re-examined — Have  heard  the  very  common  remark  among  the  law- 
yers where  I  live,  that  when  they  want  a  witness  to  swear  up  to  the  mark, 
they  must  get  Quinby  to  come  forward. 

Samuel  Brown,  recalled  by  Mr.  Spencer — Have  conversed  with  David  C. 
Bates,  on  the  subject  of  this  matter,  and  might  have  said  in  his  presence  I 
did  not  know  much  about  the  affair  and  could  not  do  any  good.  I  told  my 
brother-in-law  that  if  they  could  not  find  a  bill  without  me,  they  could  not 
convict  him  with  me.  Have  never  said  I  thought  McLeod  was  not  in  the 
boats. 

David  C.  Bates — I  reside  at  Canandaigua ;  know  Samuel  Drown  ;  heard 
him  in  February  last,  I  think,  speaking  about  the  Caroline  affair,  and  he 
said  he  was  summoned  to  go  to  Lockport  to  testify  in  the  McLeod  case. 
I  asked  what  he  knew  about  it,  and  he  said  he  didn't  know  that  he  knew 
any  thing  about  it,  or  enough  to  do  McLeod  any  good  or  harm. 

Cross-examined  by  the  Attorney-General : 

I  was  well  acquainted  with  his  affairs  at  that  time  ;  it  would  have  been 

it  has  always  been  so 
that  may  have  induced 


tune ; 
man 


I  have  never  heard  his 


•;  •--;■■     ■> 

^fe; 

.  i>*; 

■%^^ 

'    -■* 

*'  ._, ' 

inconvenient  for  him  to  leave  home  at  that 
on  account  of  his  poverty.  He  is  a  poor 
him  to  keep  silent  upon  the  subject. 

How  long  have  you  known  Drown  ? 

I  have  known  him  ever  since  he  was  a  boy 
character  called  in  question  in  a  court  of  justice. 

From  your  knowledge  of  his  character  how  does  he  stand  for  truth  and 
veracity  ? 

I  have  never  heard  him  called  in  question  for  truth  and  veracity. 

Mr.  Spencer  objected  to  this  mode  of  interrogating  the  witness. 

The  court  remarked  that  the  rule  laid  down  by  Judge  Oakley  was  to 


^ 


agait 
T 


k^: 


y.    /  *. 


5- J 


MCLEOD  S  TRIAL. 


95 


ive  induced 


inquire  as  to  the  character  of  the  witness  for  truth  and  honesty.  He  says 
the  inquiry  as  to  trutli  and  voracity  is  too  limited,  since  wliich  1  liave 
adopted  the  same  rule,  and  1  know  of  no  decision  of  our  Supreme  Court 
against  it. 

The  Attorney-General  remarked  that  that  decision  had  arisen  from  the 
circumstance  that  the  witness  produced,  had  proved  himself  to  be  a  despi- 
cable character,  living  in  illicit  intercourse  in  the  same  neighborhood ;  it 
came  out  on  his  own  cross-examination  ;  then  the  question  arose  whether 
the  party  introducing  him  might  not  show  that  his  character,  though  bad 
in  some  respects,  was  good  so  far  as  his  truth  and  veracity  were  con- 
cerned. And  the  Circuit  Court  ruled  that  they  might.  It  was  also  dis- 
cussed before  the  Supreme  Court  and  confirmed  :  Bkonson  dissenting. 

Mr.  Spencer — This  cross-examination  I  supposed  admissible  under  the 
decision  in  12  Wendell.  I  therefore  allowed  the  inquiry  to  be  put  to  Mr. 
Bates  as  to  the  general  character  of  this  man  for  truth  and  veracity.  Yet 
I  hold  that  I  am  allowed,  on  cross-examination,  the  same  right  which 
would  be  allowed  when  I  call  a  witness  as  to  the  credit  of  another. 

The  court  decided  that  the  Attorney-General  was  within  the  rule  ;  it 
was  proper  to  sustain  the  witness  by  showing  that  he  had  a  good  cha- 
racter. 

They  had  a  right  to  inquire  into  such  particulars  as  involve  his  charac- 
ter in  its  general  principles,  as  had  been  decided  by  the  Superior  Court 
upon  the  reasons  assigned  by  Judge  Oakley  in  the  first  place  ;  and  sec- 
ondly, that  when  a  witness  is  sought  to  be  impeached,  it  is  not  solely  what 
his  character  is  for  truth  and  veracity,  but  you  may  go  to  the  length  of 
asking  what  his  character  is  for  truth  and  honesty, — not  whether  he  is 
lascivious  or  intemperate,  but  as  to  his  integrity,  for  that  goes  to  his  truth  j 
for  if  a  man  is  dishonest,  he  is  not  a  man  of  truth.  Judge  Oakley  gave 
the  soundest  reasons  for  his  opinion ;  I  have,  therefore,  adopted  the  rule, 
and  I  understand  that  others  have. 

Mr.  Spencer — How  is  his  reputation  in  your  community  for  truth  and 
honesty  ?  For  the  last  two  or  three  years  it  has  been  good.  Before  that 
it  was  rather  bad. 

Mr.  Hall — As  to  Mr.  Brown's  previous  bad  character,  did  it  reach  his 
truth  and  veracity  ?  He  was  reputed  dishonest,  and  a  man  not  to  be  re- 
lied upon. 

;    A  Juror — How  long  had  he  lived  there  ?     Six  or  eigut  years.     When 
.  be  went  to  Canada  his  character  had  become  good,  and  remained  so  after 
his  return  from  there.     I  think  he  had  redeemed  his  reputation  two  or 
three  years  before  he  went  to  Canada,  and  I  have  heard  of  no  relapse. 

James  A.  Sears,  examined  by  Mr.  Spencer — I  reside  at  St.  Catha- 
rine's, in  the  district  of  Niagara ;  I  resided  there  on  the  .5th  December, 
1837,  when  the  rebellion  broke  out ;  after  that  I  entered  the  service  as  a 
captain  in  the  incorporated  militia,  and  was  at  Chippewa ;  I  was  in  com- 
mand  of  the  in-line  piquet  guard,  from  outside  the  main  guard,  which 
terminated  at  a  little  bridge  near  Davis's  tavern,  to  the  point  opposite  the 
end  of  Navy  Island.  The  bridge  was  about  half  way  from  Davis's  tavern 
to  the  place  of  embarkation.  After  crossing  the  little  bridge,  outside  the 
main  guard,  there  was  a  sentinel  stationed.  The  first  sentinel  on  the 
piquet  guard  was  nearly  opposite  the  place  of  embarkation,  and  perhaps 
ten  or  twelve  rods  from  the  main  guard.  There  is  a  road  there,  and  the 
sentinel  was  in  that  road.     The  place  of  embarkation  was' very  .Jiear 


s?.J 


t<:':':^ 


ill- 


M 


GOULDS   REPORTER. 


where  the  cut  entered  the  Chippewa ;  there  were  a  large  number  of  trees 
there,  quite  close  to  the  shore,  and  between  the  shore  and  the  road  ;  they 
form  a  very  beautiful  shade ;  the  second  sentinel  was  about  six  or  eight 
rods  above  the  cut ;  there  was  a  guard-house  built  of  boards ;  it  was 
about  a  quarter  of  a  mile  below  the  lower  point  of  Navy  Island ;  there 
was  a  sentinel  there  on  the  bank  of  the  river;  there  was  another  sentinel 
at  the  door  of  the  guard-house  ;  there  was  another  sentinel  about  20  rods 
further  up  on  the  bank  of  the  river ;  all  the  sentinels  were  in  the  road ; 
there  was  another  sentinel  20  rods  further  up ;  they  were  placed  along 
the  road,  15  or  20  rods  above  each  other ;  there  were  frequent  challenges 
that  night ;  I  was  up  all  night ;  I  was  there  at  the  embarkation  of  the  ex- 
pedition ;  I  do  not  know  that  Col.  McNab  was  there  ;  it  was  so  very  dark 
I  could  not  distinguish  any  one,  unless  1  was  very  particularly  acquainted 
with  him  ;  there  were  seven  boats  in  which  the  men  were  embarked ;  I 
was  mix'jd  up  with  the  party  ;  I  then  knew  McLeod ;  I  had  known  him 
very  well  since  1834;  I  was  acquainted  with  him  as  with  a  man  in  a 
public  oflice  ;  1  did  not  see  him  in  that  party  ;  when  they  embarked  they 
began  to  row  ;  then  some  of  the  sailors  landed  and  "  tracked  ;"  1  received 
directions  that  when  the  sentinels  saw  boats  approach,  they  were  not  to 
challenge,  lest  it  should  be  heard  on  Navy  Island ;  I  instructed  the  guard 
to  that  effect,  and  to  prevent  mistake,  an  officer  of  Col.  McNab's  staft* 
rode  up  the  line  of  sentinels  as  the  boats  went  up ;  the  expedition  was  to 
be  kept  as  secret  as  possible  ;  I  went  with  the  expedition  as  far  as  I  had 
charge  ;  there  was  another  officer  who  had  charge  of  a  guard  above  my 
guard  that  night ;  when  the  boats  took  their  departure  from  the  Canada 
shore,  I  did  not  sec  them ;  it  was  then  about  ten  o'clock  ;  I  went  back  to 
the  guard-house,  and  remained  there  until  I  saw  a  light  at  Schlosser,  of 
the  Caroline  on  fire  ;  I  then  went  immediately  down  to  where  the  beacon 
light  was  just  blazing  up  ;  I  stopped  there  but  a  few  moments  ;  I  went  to 
the  orderly  house  to  some  officers  who  were  camping  on  the  floor,  to  in- 
form them  of  the  circumstance  ;  I  then  returned  to  the  beacon  light,  and 
the  fire  of  the  boat  enabled  me  to  see  it  was  the  Caroline,  as  it  got  her 
steam  up  ;  the  beacon  light  was  to  aid  the  expedition  on  its  return ;  they 
returned  between  two  and  three  o'clock ;  the  general  orders  were,  that 
no  person  should  pass  the  sentinels  without  the  countersign ;  when  the 
expedition  returned,  I  went  among  them ;  I  had  some  friends  and  acquaint- 
ances in  the  party,  and  I  wished  to  learn  the  result ;  I  saw  all  the  men 
as  they  disembarked  respectively,  and  I  learned  these  were  the  five  boats 
which  had  reached  the  Caroline  ;  I  did  not  see  McLeod  among  the  num. 
ber ;  I  saw  the  other  two  boats  come  in ;  I  think  it  was  daylight ;  the 
beacon  light  was  then  nearly  burned  out ;  I  understood  they  had  separated 
from  the  rest  of  the  party  in  the  river ;  the  other  party  had  all  gone  to 
their  quarters  silently.  I  was  frequently  in  Davis's  tavern  in  the  night, 
and  also  in  the  morning ;  T  saw  nothing  of  McLeod  there ;  I  saw  him 
about  noon  of  that  day ;  I  and  another  officer  had  gone  up  the  river  to 
near  the  residence  of  Capt.  Usher,  who  was  murdered ;  while  standing 
there,  looking  across  to  Navy  Island,  to  observe  their  movements,  we  saw 
them  bring  out  a  cannon  from  behind  a  pile  of  cord  wood,  and  prepare  to 
discharge  it ;  we  looked  down  the  road,  and  the  officer  that  was  with  me 
said,  "here  comes  Col.  McNab;"  two  men  were  coming  on  horseback! 
I  said  one  of  them  is  McLeod  ;  they  passed  on  ;  the  Navy  Islanders  fired 
at  the  horsemen,  and  that  fixes  it  on  my  recollection ;  there  had  been 


MCLEOD  S   TRIAL. 


w 


a  man  in  a 


cannon  fired  from  Navy  Islmid  almost,  I  think  quite,  daily,  and  frequently 
in  the  night ;  they  fired  at  the  people  on  the  Canada  main,  and  people 
were  killed. 

The  Attorney-General  olijoctcd  to  this  course  of  e.xamination.  He 
.said  they  were  not  tryin{^  the  Navy  Island  affair. 

Mr.  Spencer  said  he  should  show  yet  that  two  hundred  stand  of  arms 
had  heen  stolen  from  JJufllilo.  These  circumstances,  immediately  in  con- 
nection  with  the  affair,  were  competent  to  he  given  in  evidence.  He  wa»< 
surprised  that  the  learned  Attorney-General  should  he  so  restive  on  this 
huhject. 

Mr.  Jenkins  argued  that  the  evidence  was  inadmissible. 

Judge  Gridley  .said  the  opinion  of  the  Supreme  Court  would  he  hindinii 
on  him,  and  would  govern  him  if  the  pri.-^oncr's  counsel  should  offer  testi- 
mony on  the  question  rai.sed  Inst  night,  to  which  he  supposed  the  counsel 
would  except,  that  he  might  carry  it  up  to  another  tribunal.  The  killing 
of  person.s  on  the  Canada  shore,  therefore,  was  not  admissible  in  proof 
on  this  trial. 

Mr.  Spencer — VVc  propose  to  show  that  three  persons  were  killed  on 
the  Canada  shore. 

Judge  Gridley — I  overrule  it. 

The  examination  resumed — The  river  there  is  not  frozen  over  in  win- 
ter, and  persons  accustomed  to  it  may  cross  with  perfect  safety. 

Mr.  Spencer — Would  not  a  steambeat,  in  the  employment  of  the  Navy 
Islanders,  be  of  great  use  to  them,  and  a  great  annoyance  to  the  Cana- 
dians ? 

Mr.  Jenkins — I  object  to  that. 

Judge  Gridley — It  is  overruled. 

By  the  Atlorney-General — I  am  a  native  of  Lower  Canada,  forty  mih's 
east  of  Montreal,  Caldwell's  Manor  ;  I  have  resided  a  few  years  in  Ro- 
che.ster,  in  the  county  of  Munroe,  in  this  State ;  I  went  there  in  1824, 
and  returned  in  1828  or  1829 ;  I  came  from  the  Gore  District ;  I  resided 
at  Niagara  Falls  in  1818,  and  in  the  Gore  District  in  1820 ;  in  the  close 
of  the  spring  of  1815,  after  the  close  of  the  war,  I  came  to  the  United 
States  to  see  the  different  parts  of  the  country  ;  I  was  in  the  army  during 
the  latter  part  of  the  war ;  I  was  drafted  into  the  incorporated  militia  in 
1813 ;  I  went  to  Rochester  for  the  purpose  of  publishing  an  elementary 
school  book ;  in  the  Gore  District  I  cultivated  a  farm  of  one  hundred 
acres,  and  I  followed  the  business  of  house  joiner ;  at  Niagara  Falls  I 
followed  mv  trade. 

Judge  Gridley  objected  to  the  examination.  He  said  if  they  were  to 
have  as  many  biographies  as  witnesses,  they  would  not  get  through  for  a 
long  time. 

Examination  resumed — I  resided  in  St.  Catharine'.s  ten  years  ;  I  was  a 
political  writer  for  a  newspaper  ;  I  was  a  reformer,  and  was  out  in  oppo- 
sition to  the  government ;  but  circumstances  have  changed ;  the  militia 
with  which  I  was  connected  was  raised  by  enlistment,  and  they  were  sta- 
tioned like  a  regular  army ;  the  persons  I  enlisted  were  colored  men ;  I 
suppose  they  were  natives  of  the  United  States  ;  I  had  this  company  at 
Chippewa  ;  the  recruiting  officers  were  not  colored  men  ;  no  colored  men 
were  allowed  to  be  officers;  I  was  commissioned  by  Sir  F.  B.  Head  in 
person  ;  there  were  Indians  in  the  service. 


Judge  Gridley  thought  this  was  not  relevant. 

13 


This  cause  should  be 


;j*i 


,.,;,,,^', 


K 


i'-'l. 


m 


'^ 


oe 


fiOULD  S   REPOKTER. 


tried  in  n  hwycr-likc  way,  but  much  evidoncn  had  been  given  that   hnd 

The  time  of  the  court  was  too  vuktablo 


ti 


miic 
ic  case. 


IK)  sort  of  relevancy  to 
to  be  thus  consumed. 

Cross-examiuation  n>sumcd — I  was  at  Chippewa  on  the  night  of  the 
drstruclion  of  the  Caroline,  as  1  iiave  stated,  and  these  persons  were  the 
sentinels;  wlien  the  beacon-light  was  burning,  it  was  ligiiter  out  of  tho 
shade  of  tho  trees  than  b(!fore  ;  it  was  an  excessively  dark  night ;  the 
trees  might  not  all  have  ln-en  willows ;  while  I  was  present,  no  person 
was  allowed  to  pass  the  sentinel  without  the  countersign  ;  1  was  always 
challenged  myself,  and  that  led  me  to  suppose  that  they  were  attentive  to 
their  duty.  I  came  down  from  the  guard-room  when  the  men  were  as- 
sembling to  go  on  the  expedition ;  I  knew  there  was  an  expedition  in  pre- 
j)aration ;  I  was  told  by  a  friend  who  was  one  of  the  expedition  ;  when 
the  expedition  left  the  place  of  embarkation  I  saw  five  or  six  men  remain 
at  Chippcnva  creek  ;  I  did  not  see  many  persons  ;  1  did  not  see  hundreds ; 
I  could  not  distinguish  persons  going  on  the  expedition  without  a  close 
>'xamination  ;  it  was  very  dark  ;  it  was  a  secret  expedition  ;  1  was  invited 
to  go  ;  they  only  wanted  volunteers  and  some  sailors  to  man  the  boats  ; 
(^ol.  McNab  was  the  oflicer  in  cotnmand ;  I  know  him  by  sight ;  Captain 
.\ndrew  Drew  was  point(!d  out  to  me  some  days  previous ;  I  knew  John 
Klmsley  in  the  same  way ;  he  was  an  officer  in  the  navy  ;  I  was  told,  in- 
<'.luding  sailors  and  volunteers,  there  were  about  sixty  persons  in  tho  expe. 
dition ;  I  know  Rowland  McDonald,  George  Chalmers,  John  B.  Warren, 
Captain  Mozier,  and  Richard  Arnold  ;  Arnold  was  wounded  in  that  expe. 
dition ;  I  cannot  say  that  I  saw  Col.  McNab  there  that  evening;  I  heard 
captain  Drew  giving  directions  about  the  embarkation  ;  I  saw  no  person 
in  uniform  ;  1  think  there  were  five  persons  in  that  expedition  that  1 
knew. 

The  court  now  took  a  recess  for  dinner. 

Thursday,  2  o'clock,  P.  M. 

The  proceedings  were  resumed  by  the  Attorney-General,  who  continued 
the  cross-examination  of  Scars. 

How  did  the  men  go  when  they  got  out  of  the  boats — in  military  order  ? 
No.  How  long  were  you  there  altogethei*  ?  Can't  exactly  say.  Did  you 
wait  for  the  other  boat  that  lagged  behind  ?  Yes.  The  companies  of 
these  four  boats  went  away  together  ?  I  can't  say.  Did  tho  fifth  boat 
come  up  after  the  others  left  ?  Yes.  Were  people  coming  back  and  for- 
ward ?  I  couldn't  say  that.  Only  a  few  were  in  the  secret  ?  Yes,  very 
few  knew  of  it.  When  did  you  get  to  Davis's  1  About  two  or  three 
o'clock  at  night.  Did  you  speak  to  any  one  of  the  party  there  ?  No. 
Did  you  find  any  in  the  orderly  room  ?  Yes — one  person.  Was  that 
either  of  the  persons  that  you  saw  when  tl  ey  landed  ?  Yes.  When  after 
that  did  you  see  McLeod  ?  I  saw  him  between  ten  and  twelve  o'clock  the 
next  day.  How  do  you  recollect  that  ?  From  the  circumstance  of  their 
firing  at  him.  How  far  off"  was  he  ?  A  short  distance.  On  foot  or  on 
horseback  ?  On  horseback.  Did  you  speak  to  him  ?  No.  Did  he  not 
accost  you  ?  It  strikes  me  he  did  on  his  return.  When  did  he  return  ? 
In  the  afternoon.  At  what  hour  ?  Can't  say  exactly.  Had  you  dined  ? 
No.  What  hour  did  you  dine?  No  particular  hour.  Have  you  been 
present  during  the  trial  ?  During  part  of  it.  When  did  you  arrive  ?  On 
Tuesday  morning.     Have  you  been  present  all  the  time  since  ?    No,  one 


MCLEOD  .S   TRIAL. 


09 


:^n  that  Imd 
too  vulimblo 

night  of  the 
ns  wore  the 
r  out  of  tho 
:  night ;  tho 
it,  no  ]H!rson 

was  always 

nltontivo  to 
en  were  us- 
^ition  in  pre- 
lltion  ;  when 

men  rcmuin 
30  hundreds ; 
ithout  a  close 
1  was  invited 
n  the  boats ; 
ght ;  Captain 
I  knew  John 

was  told,  in- 
3  in  the  expe- 
1  B.  Warren, 

in  that  expe- 


lay  I  was  absent.     Have  you  taken  an  active  part  as  agent  for  tiie  pii- 


?     No.     Have  yon  doiie  ar.y  thing  in  that  way  ?     I  ha 


not. 


ling 


I  heard 


law  no  person 
idition  that  1 


ock,  P.  M. 
vho  continued 

itary  order  ? 
ay.    Did  you 
companies  of 
ho  fifth  boat 
jack  and  for- 
Yes,  very 
two  or  three 
there  1     No. 
Was  that 
When  after 
ire  o'clock  the 
ance  of  their 
)n  foot  or  on 
Did  he  not 
d  he  return  ? 
d  you  dined  ? 
ive  you  been 
arrive  ?    On 
e  1    No,  one 


1. 


sonei' 

you  acquainted  in  Niagani  ?  A  little.  Voii  know  some  of  the  inliahi- 
tants  ?  Yes.  Do  you  know  .Mr.  Hamilton?  Slightly.  Did  you  know 
ih(!  Deputy  Collector  ?     Raincock  ?     Yes — do  you  know  him  i    No. 

By  .Mr.  Spencer — Did  the  fit'ili  boat  arrive  before  the  others  left  ?  A 
considerable  portion  of  the  persons  in  the  others  had  gone. 

By  a  Juror — I  think  it  was  a  mile  from  the  place  of  embarkation  to 
where  the  last  sentinel  was  posted. 

Mr.  Spencer  thfii  proposed  to  bring  forward  tlu^  ducumcntary  evidence. 
Ho  would  first  introduce  the  various  odiei.il  doeuments  that  had  refer- 
ence to  the  negotiations  at  present  pending  between  the  (.iovcrnment  of 
the  United  States  and  Great  Britain. 

First — Communication  to  our  Minister  in  England. 

Second — A  communication  from  the  British  (iovernment  to  Mr.  Fox. 

Third — Instructions  from  Mr.  Forsyth  to  Mr.  Stevenson,  given  shortly 
after  the  aflair  of  the  Caroline. 

Fourth — Letter  of  Mr.  Stevenson  to  the  British  Government,  demand- 
ing satisfaction  in  this  matter. 

Fifth — Answer  of  Lord  Palmerston,  who  was  Secretary  of  State  for 
Foreign  Afiairs,  to  Mr.  Stevenson. 

Sixth — A  letter  of  Mr.  Forsyth  to  Mr.  Fox. 

Seventh — Letter  from  Mr.  Fox  to  Mr.  Forsyth,  with  accompanying 
documents. 

Eighth — Letter  from  Mr.  Fox,  r2th  March,  to  .Mr.  Webster,  Secretary 
of  State. 

Ninth— ^Letter  of  Mr.  Webster  to  Mr.  Fox,  dated  April  24,  1841. 

He  (Mr.  Spencer)  did  not  know  but  these  would  be  all  that  might  be  ne- 
cessary. There  were  others  which  he  desired  to  introduce.  These  had  all 
now  been  published,  and  were  public  property,  which  was  not  the  case 
when  the  argument  was  had  before  the  Supreme  Court. 

The  Attorney-General  asked,  with  what  intent  ? 

Mr.  Spencer  thought  the  gentleman  could  scarcely  misapprehend  him 
if  he  recollected  his  (Mr.  Spencer's)  opening.  It  is  with  a  view  to  present 
the  question  in  such  a  state  before  this  court  upon  tho  traverse  of  this  issue, 
that  having  established  the  fact  that  this  was  the  exercise  of  the  public 
force  of  Great  Britain,  and  being  acknowledged  as  an  act  of  the  public 
force  on  the  part  of  Great  Britain,  the  individuals  who  acted  in  obedience  to 
their  orders,  are  not  individually  responsible.  Substantially  upon  the  princi- 
ple contained  in  Mr.  Fox's  letter  to  Mr.  Webster  in  March  last,  and  the 
acknowledgment  of  Mr.  Webster  in  the  matter — both  Governments  insist- 
ing that  there  had  already  been  an  invasion  of  their  respective  territories. 

Attorney-General — That  is,  a  state  of  war  ? 

Mr.  Spencer — Such  a  state  of  things  that  when  they  were  there,  the 
whole  of  the  party  were  acting  in  obedience  to  the  orders  of  the  govern, 
rtient,  and  are  not  individually  responsible.  Although  the  Supreme  Court 
could  not  look  into  the  whole  case,  yet  here  upon  the  traverse  of  the  in- 
dictment, we  are  enabled  to  do  so,  and  by  means  of  this  documentary  evi- 
dence to  show  the  extent  and  state  of  the  war.  We  intend  to  enlarge 
very  considerably,  to  show  <hat  a  very  considerable  amount  of  arms  and 
munitions  of  war  were  concentrated  upon  Navy  Island ;  to  show  that  the 
arsenals  all  along  the  frontier  had  been  plundered,  and  the  military  stores 


K 


*-i--  ;''•; 


■t^ 


100 


r.nULD  S    REPORTKR. 


taken  to  Nuvy  Island;  thnt  tlio  vory  arms  timt  were  tnkon  iind  rt'lurtii  li 
ill  tluj  cur,  wore  with  the  kaowkvlf^*;  and  coiiNeiil  of  tlit;  Mayor  of  Hutlalu, 
allowed  Id  bi;  taken  out  tA'  the  arsenal  by  the  putriots,  and  taken  t(i  Nav) 
Island.  That,  in  short,  if  your  honor  please,  there  was  such  a  state  of 
things  on  the  frontier,  that  the  wlioli!  frontier  was  acting  in  snliserviency 
to  the  attacking  party  on  Navy  Island.  Not  that  there  were  not  nmny 
honorable!  exceptions  there,  but  the  authorities  of  New  York,  as  a  sovereign 
state,  were  utterly  paralyzed  ;  and  with  respect  to  the  autlmrities  of  the 
United  States,  they  had  no  ofTicers  or  tntops  ;  but  there  was  a  state  of 
war.  Now,  i  do  not  say  a  solemn  war,  but,  as  between  the  belligerents 
rontcnding,  there  was  a  state  of  war  emphatiirally — a  war  to  all  intents 
and  purposes.  It  needed  not  the  declaration  of  war  by  (ireat  Hritain  ; 
it  was  enoucli  that  the  dependencies  of  (ireat  Jtritain,  charged  with  the 
duty  of  defence,  hfid  an  assailant — that  their  territory  had  been  invaded — 
that  near  them  was  an  intrenched  enemy,  who  |»rofessed  to  establish  a  pro- 
visional government,  which  would  effect  the  dismemberment  of  the  king- 
dom of  Great  Britain,  and  lead  to  the  formation  of  n.n  indi^pendenl  govern- 
ment in  one  of  her  provinces.  To  subvert  the  Bri'ish  GovernuK'nt  was 
this  armed  force  employed.  We  propose  to  go  farther  s*.i!l,  and  lo  show 
tiiat  it  was  a  necessary  act  of  tin;  provincial  authorities  in  seU-detene.e. 
VVe  propose  to  show  it  by  establishing  the  proposition,  an  J  in  conformity 
to  the  well-settled  rules  of  war,  that  this  steamboat  wi ;  in  tlio  hands  of 
the  assailants,  or  the  attacking  party — thiit  it  was  an  engine  of  destruction 
and  annoyance  more  potent  and  eirectnal  than  any  other  thing  in  their 
employ.  We  are  to  look  at  the  surrounding  circumstances.  What  wa^^ 
Schlosser  1  Suppose  the  Niagara  river  were  no  wider  than  from  Navy 
Island  to  the  Canada  shore,  this  whole  army  instead  of  being  on  the  islaml 
would  have  been  at  Schlosser,  and  receiving  arms  and  munitions  of  war 
from  the  whole  surrounding  country,  and  they  were  there  accordingly,  as  at 
Navy  Island,  and  opening  a  war  upon  the  British  dependencies,  and  threat- 
ening to  invade  the  provinces,  these  provinces  would  have  as  much  right 
to  defend  themselves  by  working  the  destruction  of  4fcD  assriT.  ig  party  as 
they  would  have  had  at  Navy  Island  ;  and  if  so,  thisTioat,  passing  back 
and  forth,  was  subject  to  destruction,  as  a  course  of  necessary  Self-defence. 
Now  what  are  the  rules  of  war  in  rclation^o  this  ?  That  in  any  warlike 
movement,  the  party  assailed  is  bound  to  wait  till  the  attacking  party  have 
reached  them  and  opened  their  batteries  on  them  ?  Not  at  all.  When- 
ever an  army  is  approaching  with  a  view  to  annoyance,  the  assailed  part} 
has  just  as  much  right  to  work  the  destruction  of  that  army,  as  after  they 
liave  reached  and  are  ready  to  open  their  batteries.  If  the  fact  was  known 
that  she  (the  Caroline)  was  coming  down  the  river — if  the  Canadians 
knew  that  she  was  coming  down  with  munitions  of  war,  to  annoy  them, 
they  had  just  as  good  a  right  to  work  her  destruction  on  the  passage  as  at 
any  time  after  arriving  in  the  province  of  Canada.  It  is  a  great  mistake 
to  suppose  that  we  are  to  apply  the  principles  of  an  assault  and  battel*)-  in 
a  war  movement.  It  is  a  fundamental  error  to  apply  any  such  doctrine. 
You  cannot  apply  the  doctrine  of  retreating  lo  the  wall  to  get  rid  of  an 
assailant — it  being  the  fundamental  doctrine  that  when  open  hostilities 
have  commenced,  they  have  a  right,  by  stratagem  or  any  other  means,  to 
get  advantage,  and  make  a  destruction  before 4hey  have  an  opportunity  ol 
doing  an  injuiy.  The  Canadian  party  were  a.ssailed,  and  liad  just  as  mticb 
right  lo  defend  themselves  there  as  at  Navy  Islandor  the  Canadashore.  Does- 


it  m( 

:uul 

this 
and 


MCLEOD  S  TRIAL. 


lUl 


it  make  any  dift'crcnce  l)clwocn  Navy  l.slniHl  nixl  Si^lilosscr,  or  Navy  Islaml 
iind  Cliip|)uwn  f  SuppoHt;  a  lujgriu'iit  had  Itcon  nmdu  at  Chippowa,  and 
tfuM  Nteainbont  had  hctn  ninniii^  to  ScIiIusmt  and  that  |H>int,  tu  f^ivc  aid, 
and  Ntr(!iir;th,  and  succour,  I  wtnild  ask  wlicthcr,  as  hctwcdii  the  Ainorican 
people  and  (treat  Britain,  persona  on  thu  Canada  Nhorc  woidd  not  have 
had  a  riffht  to  work  tiio  destruction  of  that  boat  wherever  they  ciaild  liiid 
\\vjr,  whether  in  tlieir  own  waters  or  ours  1  Would  it  not  be  a  itro|ter 
matter  of  sclf-defenco  f  Where  was  this  warlike  movement  I  VVe  are 
to  look  to  the  surrounding  circumstanees.  They  were  divided  by  a  rapid 
Ntrcam,  and  but  little  above  the  mighty  cataract  over  which  no  human  being 
i!ver  went  alive.  It  was  therefore  extremely  perilous  to  navigate  that 
stream  with  row-boats  at  any  time,  and  particularly  ut  tluit  season  of  the 
year.  They  iiud  no  steamboats  or  armed  vessels.  A  steamboat  came 
down,  say  for  liostile  purposes.  How  was  it  to  be  guarded  against  .'  In 
the  day  time,  when  the  steam  was  up,  what  would  be  the  use  for  a  few 
row-boats  to  make  an  attack  ?  with  lier  steam  she  could  run  away  from 
them,  or  she  could  run  down,  ami  run  over  any  boats  whicli  might  bo 
brought  against  her.  They  could  not  come  out  in  the  day  time,  when  tin; 
boat  wa.s  in  active  employment,  with  steam  up,  with  any  prospect  of  suc- 
<;ess.  How  were  they  then  to  come  at  her?  1  ask  whether  they  were 
bound  to  let  her  be  running  continually  to  strengthen  the  post,  so  that  they 
might  make  a  descent  upon  Canada  ?  Were  they  bound  to  lie  by  and  do 
nothing  to  prevent  supplies  being  sent  to  the  Navy  Islanders  ?  I  think 
your  honor  will  sustain  the  doctrine,  that  they  had  a  right,  and  that  the 
Attorney-General  will  not  contend  that  they  had  no  rigiit  to  attack  those 
upon  Navy  Island,  or  to  attack  the  boat  at  Navy  Island.  I  think  that  he 
will  not  contend,  that  with  this  rapid  stream  running  past,  and  the  cataract 
below,  and  no  means  to  get  at  the  boat  in  the  day  time,  that  they  were  not 
justified  in  making  the  attack  at  night.  What  were  they  to  do  ?  Would 
you  expect  them  to  come  from  the  Canada  shore  round  Navy  Island,  with 
the  whole  island  bristling  with  bayonets  pointing  in  every  direction  ? 
Would  that  bo  tbuught  practicable  ?  Would  any  person  think  that  cxpe- 
dient  ?  Surely  not.  When  they  came  with  their  row-boats,  would  it  not 
be  the  easiest  thing  imaginable  for  the  steamer  to  escape  to  Schlosscr,  or 
up  the  river  ?  Let  them  look  at  this  subject  as  if  they  had  some  know- 
ledge  of  military  movements.  Could  this  boat  have  been  assailed  with  any 
hope  of  success  in  the  day  time,  in  the  vicinity  of  Navy  Island  or  Schlos- 
ser  ?  1  trust  not.  Where  then  is  that  boat  to  be  destroyed,  if  at  all  ? 
Here  in  Canada  were  the  commanding  officers — were  they  bound  to  lie  by 
and  be  destroyed  through  the  instrumentality  of  that  boat. — let  her  go  on 
whilst  they  did  notliing  i  Would  they  fold  their  arms  and  never  fire  a  gun  ? 
Must  they  remain  at  home  ?  Is  it  military,  is  it  prudent  ?  Then  what  are 
they  to  do?  I  repeat  the  question.  They  must  do  one  of  two  things — 
they  must  destroy  the  boat,  or  allow  her  to  remain  unmolested  for  their 
own  annoyance.  Were  they  bound  to  submit  to  her  annoyance  ?  They 
had  a  right  to  work  her  destruction  for  their  own  security  and  self- 
defence,  to  prevent  a  descent,  for  they  knew  it  was  intended  to  work  a  re- 
volt  in  Canada.  They  knew  that  they  would  have  many  of  the  discontents 
rallying  to  their  standard.  It  was  not  whether  •'iOO  or  even  2000  were 
upon  the  island.  They  had  only  to  erect  a  standard  upon  the  spot  where 
they  could  rally.  This  was  a  gathering,  a  nucleus  or  rallying  point  from 
which  a  descent  was  to  be  made  upon  the  province  of  Canada.    They  had 


1 


i 


I'l 


;.'-i'€- 


k  I.; 


?•  ; 


■^   W 


102 


UOITLD's    RCl'OHTKR. 


crtTtfd  the  Mandnni  to  wliich  the  diHOontentpH  wore  ready  to  fly  ;  a  revolt 
had  Itruii  nh't'iidy  titU'iiiptod  at  Tonnito  and  put  down  l)y  the  inilitiu.  It 
was  ititeiidrd  again  to  futi".  (Canada.  How  was  it  to  hu  doiio  ?  Hy  col. 
It'ctin«;  sidlicicnt  niatt-rials  at  Nuvy  Island,  and  through  tin'  instrunu'ntidity 
of  a  slcand)')at,  to  rnako  a  dcsciint  upon  tht;  Canadian  main.  Now  I 
would  Nid)tnit  to  your  honor,  whether  they  hud  not  a  right  to  juit  it  out  of 
the  power  of  this  party  to  annoy  them,  hy  destroying  an  instrument  which 
was  calculated  to  promote  and  further  the  views  of  the  attarking  party  ? 
Let  me  illustrote  tliia  matter.  Suppose  the  ohject  of  thu  invaders  was  to 
get  across  to  thu  Canadian  main — suppose  they  go  across  to  (Irand  Island 
and  cut  down  tind)er  for  the  purpose  of  making  a  flotilla  to  carry  the  at- 
tacking party.  Grand  Island  is  within  the  territory  of  the  United  States. 
Will  iliis  court,  will  any  court,  will  the  law  hold  that  the  Canadians, 
knowing  that  this  flotilla  was  constructing,  would  not  hav(<  a  right  to  go 
upon  ( I  rand  Island  and  destroy  the  timber,  and  those  engaged  in  making 
the  flotilla,  as  well  upon  (Jrand  Island  as  upon  Navy  Island  (  Let  us  see 
how  it  is  it>  our  (mn  country.  How  was  it  with  respect  to  one  of  the 
Sjmnisli  islands  in  I'Morida,  only  a  few  years  ago,  perhaps  1818,  when  an- 
noyance was  expected  to  the  United  States  from  the  occupants  ?  They 
hud  not  opened  their  batteries  upon  thu  United  States.  Not  at  all.  It 
was  a  province,  belonging  to  Spain ;  and  what  did  our  peace-loving  pre  sident, 
Mr.  Moiu'oe,  do?  He  sent  the  public  force  ol' the  country  against  them, 
for  no  other  reason  than  that  it  was  a  n)edium  of  communication  by  which 
slaves  wore  introduced  into  the  United  States.  A  force  was  sent  with  iustruc- 
tlons  to  destroy  the  island.  Wo  have  the  documents  to  show,  your  honor, 
the  grounds  which  he  presented  for  doing  as  he  did  ;  for  no  other  reason 
under  the  sun  was  that  public  force  put  on  foot  and  sent  to  the  island — for 
the  purpose  of  capturing  those  who  were  there,  after  having  been  requested 
to  surrender,  if  they  did  not  do  it  voluntarily — than  that  it  would  atlbrd 
opportunities  for  the  introduction  of  slaves,  and  interfere  with  our  revenue  ; 
the  Spanish  authorities  were  so  feeble,  as  not  to  be  able,  or  they  did  not 
exert  their  power,  to  dislodge  those  persons  who  had  taken  possession  of 
the  island.  It  was  far  from  being  a  case  like  the  one  before  us.  There 
was  not  the  slightest  j)retence  of  personal  danger  ;  no  other  reasons  were 
assigned  than  frauds  upon  the  revenue  and  the  introducing  of  slaves. 
Suppose  the  possessors  of  the  island  had  not  voluntarily  surrendered,  and 
our  batteries  had  been  opened,  and  they  slaughtered — now  let  me  ask  if  it 
would  have  been  tolerated  had  they  taken  the  commander,  or  a  sailor  who 
obeyed  orders,  and  hung  him  ?  I  ask  the  Attorney-General  to  say — if  he 
knows,  from  the  authority  of  the  Supreme  Court,  or  any  other  authority, 
in  which  way  they  would  be  murderers?  This  was  a  case  in  our  own 
country,  and  the  President  put  it  upon  the  acknowledged  law  of  nations. 
I  allude  to  the  occupation  of  Amelia  Island.  It  was  earlier  than  that  of 
St.  Marks.  We  have  the  orders  here.  It  was  not  for  the  suppression  of 
piracy,  but  to  prevent  the  introduction  of  slaves,  and  frauds  upon  the  com- 
merce. Had  the  United  States  declared  war  against  Spain,  or  Spain 
against  the  United  States  ?  Was  it  the  exertion  of  the  force  of  the  United 
States  against  Spain  which  constituted  war,  and  which  worked  the  indivi- 
dual irresponsibility  ?  Never  was  there  a  more  heterodox  doctrine  put 
forth,  than  that  there  must  be  a  declaration  of  war  to  work  individual  irre- 
sponsibility.  When  General  Jackson  had  command,  he  had  express  orders 
not  to  enter  any  of  the  fortifications  of  Spain  in  Florida.     The  orders 


MCLRODS  TRIAL. 


uc. 


fly  ;  a  revolt 
!  iiiilitiu.  h 
r.  ?  Ily  coU 
itruiiKMititlity 
til).  Now  I 
put  it  out  ol' 
iimciit  wliicli 
■king  party  i 
iiders  wus  to 
Jraiul  Island 
curry  the  fit. 
nitod  States, 
e  Canadians, 
a  right  to  go 
L:d  in  making 
Let  us  SCO 

0  one  of  the 
18,  when  an- 
mis  ?  Tht-y 
ot  ut  all.  it 
ing  pr<  sident. 
uguiiist  thcni. 
lion  by  which 
t  with  instruc- 
',  your  honor, 

1  other  reason 
le  island — lor 
eon  requested 

would  afibrd 

our  revenue  ; 

they  did  not 

lossession  of 

us.     Then- 
reasons  were 
g  of  slaves, 
endercd,  and 

me  ask  if  it 

a  sailor  who 
to  say — if  he 
er  authority, 

in  our  own 
of  nations. 

than  that  of 
ippression  of 
)on  the  com- 

n,  or  Spain 
jf  the  United 

d  the  indivi- 

doctrine  put 
dividual  irre- 

press  orders 
The  orders 


were  given  expressly,  hut  what  did  ho  do  /  IIu  deeniiMt  thai  tho  I'uited 
States  rt'({uired  it,  and  that  ihi:  Spiuiish  iiiitliDrilirs  wi'r<-  too  f  iMc  to  con- 
trol the  Indians.  Ho  nian-licd  into  Floridii,  ikiid  took  the  forts  of  I'loridn. 
Won  it  ev«!r  ilreainid  of  or  thought  of,  that  (icn.  Jackson  and  liis  nnny 
were  murderers  ?  They  killed  nifii  then' — ihey  look  Ainhri-^ti  r  :iiid  Ar- 
hulhiiot,  and  tried  them  ami  executed  them,  it  cannot  lie  iluit  an  army  act- 
ing hy  order  of  the  government,  whether  li^ilit  or  wrong,  are  murderers. 
It  is  not  so.  It  is  revolting  to  every  man.  ('urnpaii!  this  case  with  the  oin 
in  (piestion.  It  is  evident  that  tlit!  I'nited  States  and  England  are  both 
desirt)ns  of  maintaining  peace.  It  was  not  intended  to  interrupt  the 
friendly  relati(jns  of  tlie  countries.  It  was  intended  lor  nothini;  mon-  nor 
loss  than  to  work  the  destruction  of  au  instrument  of  annnyanee,  which 
was  threatening  immediate  destruction  to  them.selves.  Hci-ause  they 
could  not  reach  it  in  the  day  time,  they  must  seek  an  opportunity  when 
they  could  reach  it,  and  at  such  jioint  as  they  could  tind  most  praclicalile 
in  such  extremities,  and  with  such  means  as  they  were  able  to  employ  ; 
and  in  the  employmi'Ut  of  such  means  she  was  destroyed.  I  will  go  furtlnu* 
and  say,  that  it  is  not  a  question  at  all  whether  this  power  and  authority 
were  discreetly  and  properly  exercisisd — that  is  not  tho  question.  The 
Uritish  liovernmcnt  may  have  been  in  tlx;  wrong  throughout,  and  our  ( }o- 
vernminil  may  demand  reparation  or  satisfaction,  or  find  just  cause  of  war 
on  our  part.  It  does  not  at  all  involve  McLeod,  nor  any  other  one 
charged  with  Urmg  of  that  party.  There  is  a  wide  distinction  between  a 
government  being  wrong  and  the  soldier  being  wrong,  and  is  it  not  intol- 
erahl(!  and  revolting,  that  individuals  should  be  thus  held  responsible  ? 

Let  us  (;hange  the  tables,  and  sec  what  would  be  thought  by  our  govern- 
ment and  country,  if  the  Canadians  had  seized  u[)on  (Jrand  Island,  whilst 
wo  were  at  peace  with  Gn;at  Britain,  and  fortified  it.  Why,  there  is  no 
war — Great  Britain  has  not  declared  war — Canada  has  no  authority  to 
declare  war.  Would  it  not  be  justifiable  for  the  American  Government, 
if  they  had  it  in  their  power,  to  send  an  armed  force  to  drive  them  away  ? 
1  ask,  if  the  Attorney-General  would  deny  that  authority?  And  could 
they  not  do  it  without  waiting  to  have  the  British  government  declare  war 
against  the  United  States  I  Would  not  they  have  a  perfect  right  to  do 
so  ?  I  apprehend  they  would  have.  By  that  rule  of  reasoning,  if  a  com- 
pany, or  regiment,  were  sent  there  to  dislodge  the  invaders,  should  they 
be  taken  and  treated  as  murderers  ?  If  our  government  had  ordered  a 
regiment  of  men  to  take  possession  without  declaring  war,  and  they  had 
opened  their  batteries,  they  would  have  been  held  to  be  murderers,  not- 
withstanding they  acted  under  the  authority  of  the  government  and  in 
obedi(!nce  to  the  commands  of  their  oflicers.  It  is  a  strange  doctrine  that 
you  have  got  to  work  up  a  war  in  all  its  forms  before  individual  irrespon- 
sibility can  be  recognised.  Thus  far  I  have  presented  this  case  as  one 
where  the  proceedings,  so  far  as  respects  McLeod,  would  be  entirely  justi- 
fiable, because  of  the  defence  of  the  inhabitants.  But  I  have  yet  another 
view  to  submit,  it  is  that  the  pui)lic  documents  to  which  I  allude,  show  that 
this  matter  is  already  taken  possession  of  by  the  government  of  the  United 
States  as  an  entire  transaction,  that  they  have  taken  cognizance  of  it,  and 
have  a  right  to  take  cognizance,  and  having  taken  cognizance  of  tho  mat- 
ter, it  is  within  the  jurisdiction  of  the  United  States ;  it  is  not  in  com- 
mon with  any  inferior  jurisdiction.  The  United  States  alone  have  the 
treaty-making  power.    The  constitution  takes  it  from  the  individual  Stales 


104 


tiOULD  S  REPORTER. 


and  places  it  with  the  United  States,  It  is  with  the  executive  department 
<jf  the  government.  No  other  party  have  to  do  with  it,  only  in  the  ratifi- 
catiop  when  approved  by  the  executive.  What  is  the  duty  of  the  executive 
wiien  an  outrage  of  this  kind  has  been  committed?  It  is  to  ascertain  the 
tacts,  and  when  tiiey  are  ascertained  to  decide  upon  the  matter,  and  that 
ilecision  is  decisive  and  conclusive.  That  must  be  the  law,  or  the  govern- 
ment of  the  United  States  is  a  rope  of  sand.  They  have  this  subject  at 
tljis  moment  in  a  state  of  treaty — in  a  state  of  negotiation  between  the  two 
governments,  and  will  it  be  denied  that  the  United  States  have  as  much 
right  to  demand  satisfaction  for  the  killing  of  Durfee  as  for  the  destruction 
of  the  steamboat  Caroline  ?  Have  they  not  a  right  to  demand  satisfaction 
for  the  invasion  ?  Let  us  witness  the  case  where  the  Leopard  made  an  un- 
justifiable attack  upon  the  Chesapeake.  There  was  no  declaration  of  war 
between  Great  Britain  and  the  United  States.  They  were  making  inroads 
and  committing  depredations.  At  that  time  the  commander  of  the  Leo- 
pard insisted  on  taking  and  carrying  measures  so  far  as  to  take  hands 
from  on  board  the  Chesapeakt,  claiming  them  as  British  subjects.  No 
war  had  been  declared,  but  was  the  commander  held  as  a  murderer  ?  So 
far  from  it,  that  you  have  only  to  look  at  the  facts  to  see  that  the  British 
government  made  provision  for  the  support  of  the  families  of  those  in- 
•  lividuals  who  had  been  destroyed.  It  is  in  conformity  to  the  usage  of  na- 
tions. When  such  public  force  is  exerted,  it  becomes  a  subject  of  public 
concern,  and  is  a  subject  of  treaty,  and  as  such  is  within  the  jurisdiction 
of  the  executive  department  of  the  government.  They  had  a  right  to  take 
cognizance  of  it,  and  having  so  done,  they  have  exclusive  jurisdiction,  and 
others  cannot  interfere.  It  is  in  this  double  respect  that  we  offer  this 
evidence — it  will  entitle  the  defendant  to  a  verdict  of  not  guilty,  because 
we  are  now  traversing  the  indictment ;  and  if  it  cannot  properly  be  taken 
cognizance  of,  then  he  will  be  acquitted  for  the  reason,  that  he  was  acting 
under  Canadian  authority — that  also  entitles  him  to  acquittal  without  any 
trouble  at  all  as  to  the  alibi.  But  in  relation  to  this  decision  of  the  Supreme 
Court,  I  am  free  to  confess  that  the  doctrines  are  in  no  respect  sound  in 
this  matter,  when  they  go  to  refuse  the  Habeas  Corpus  in  this  case.  The 
decision  was  neither  more  nor  less  than  an  obiter  dictum,  hastily  pro- 
nounced. It  is  the  fiat  of  a  single  Judge  of  the  Supreme  Court :  and  the 
only  part  of  that  decision,  which  may  truly  be  denominated  obiter,  to 
which  this  court  should  attach  any  importance,  is  that  part  which  declares 
that  that  court  cannot  look  behind  the  indictment.  And  having  decided 
the  first  question  as  they  did  decide  it,  suppose  the  Supreme  Court  had 
examined  the  matter  and  come  to  the  opposite  conclusion,  that  if  facts  ap- 
pear upon  the  traverse  of  the  indictment  which  fall  within  the  law  of  na- 
tions, the  individual  cannot  be  held  responsible.  What  would  be  the  de- 
cision upon  that  issue  ?  Would  it  be  otherwise  then  it  was  ?  I  say  then 
that  no  part  of  the  opinion,  except  that  which  says  they  cannot  look  behind 
the  indictment,  is  in  any  respect  binding  on  this  court.  It  is  entitled  cer- 
tainly to  the  respect  which  is  due  to  the  Judges  upon  the  bench  of  the 
Supreme  Court.  It  then  is  for  your  Honor  to  decide — in  a  court  where  the 
law  of  nations  prevails  as  much  as  any  other  law  in  the  country — whether 
these  were  warlike  movements ;  and  when  they  have  received  the  sanc- 
tion of  the  British  government,  whether  it  does  not  work  an  individual 
irresponsibility  to  all  tho'se  who  are  of  the  attacking  party. 
The  Attorney-General  rose  to  reply,  but, 


ject, 


MCLEOD  S   TRIAL. 


105 


c  deparlmenl 

'  in  the  ratifi- 

thc  executive 

ascertain  the 

.tter,  and  that 

ir  the  govern- 

this  subject  at 

tween  the  two 

lave  as  much 

be  destruction 

id  satisfaction 

1  made  an  un- 

iration  of  war 

alting  inroads 

r  of  the  Leo- 

;o  take  hands 

iubjects.     No 

urderer  ?     So 

lat  the  British 

s  of  those  in- 

!  usage  of  na- 

tject  of  public 

le  jurisdiction 

I  right  to  take 

■isdiction,  and 

we  offer  this 

iiiity,  because 

erly  be  taken 

le  was  acting 

without  any 

the  Supreme 

pect  sound  in 

case.     The 

hastily  pro- 

)urt :  and  the 

cd  ohiter,  to 

hich  declares 

ving  decided 

le  Court  had 

It  if  facts  ap- 

law  of  na- 

1  be  the  de- 

I  say  then 

look  behind 

entitled  cer- 

)ench  of  the 

rt  where  the 

■y — whether 

3d  the  sanc- 

n  individual 


Judge  Gridley  said:  Mr.  Attorney-Gencral,  I  think  lean  relieve  you. 
I  have  considered  this  question  so  far  as  1  have  any  right  to  decide  it. 
This  indictment  has  been  brought  into  the  Supreme  Court,  and  it  has  been 
sent  down  here  to  be  tried  by  the  Circuit  judge,  like  any  other  issue.; 
while  pending  there,  a  motion  was  made  for  the  discharge  of  the  prisoner  ; 
in  the  first  place,  on  the  ground  that  the  court  had  powers  to  look  behind 
the  indictment.  The  court  considered  that  question,  and  came  to  the  con- 
clusion that  iuey  had  no  such  right  on  Habeas  Corpus,  and  the  motion  was 
denied.  But  if  they  had  the  right,  they  decided  that  this  was  not  such  a  case 
as  would  induce  them  to  exercise  it,  and  that  the  motion  should  be  denied 
for  want  of  right,  on  account  of  the  absence  of  any  thing  like  war,  and  for 
the  reason  that  there  was  nothing  in  the  pending  negotiations  between  our 
government  and  Great  Britain  which  took  away  the  jurisdiction  of  New 
York  for  an  offence  against  her  laws. 

This  opinion  has  been  arrived  at  by  the  Judges  of  the  Supremo 
Court,  on  all  these  questions  being  deliberately  argued  before  them,  and 
which,  although  written  mainly  by  one,  was  the  united  expression  of  the 
views  of  the  whole  court — after  the  most  solemn  and  deliberate  considera- 
tion. On  such  an  opinion,  I  do  not  feel  authorized  to  entertain,  or  express, 
if  I  entertained,  a  different  opinion.  Their  opinion  in  this  matter  is  law 
with  me,  and  briefly  stated,  it  is  this:  A  band  of  men — Canadian  refugees, 
and  citizens  volunteering  with  them — took  possession  of  Navy  island  j  it 
was  a  hostile  force  for  the  invading  of  Canada.  Navy  Island  was  a  por- 
tion of  Canada,  and  I  have  no  doubt  that  the  Canadian  authorities  had  a 
right  to  repel  the  invasion,  suppress  the  insurrection,  and  use  all  means 
which  nations  may  use  for  the  suppression  of  that  invasion  and  insurrec- 
tion. But  while  that  was  true,  our  citizens  had  the  right,  so  far  as  regards 
their  obligations  to  their  own  government,  to  expatriate  themselves,  and 
join  the  insurgents,  being  subject  to  the  same  punishment ;  so  too,  any 
citizens  of  our  government  had  a  right  to  carry  ammunitions  and  pro- 
visions to  either  of  the  two  belligerent  parties,  and  to  Navy  Island,  sub- 
ject, however,  to  the  penalty  of  forfeiture  in  the  event  that  they  were  cap- 
tured. If  this  boat  were  a  portion  of  the  armament  of  Navy  Island,  at 
Navy  Island,  or  on  the  high  seas,  it  would  be  subject  to  capture  on  the 
part  of  Great  Britain.  But  with  regard  to  the  United  States,  G'-eat  Britain 
was  at  peace,  and  Great  Britain,  or  any  subject  of  hers,  had  no  right  to 
molest  it ;  and  I  can  conceive  no  more  right  in  the  British  government 
sending  an  armed  band  to  make  an  attack  on  that  boat  and  destroy  it,  for 
the  fear  that  she  might  become  a  great  nuisance  to  them,  than  that  they 
have  a  right  to  send  three  men  to  Buffalo  to  destroy  the  arsenal  that  con- 
tained the  munitions  of  war,  and  kill  the  mayor  for  fear  he  would  send  the 
arms  there  to  be  used  against  them. 

These  are  the  doctrines  of  the  Supreme  Court ;  not  an  opinion,  but 
an  authoritative  decision  which  is  binding  on  me ;  and  I  have  no  discretion 
to  set  it  aside.  I  am  administering  law  in  the  Circuit  Court,  subject  to 
the  decision  of  that  very  tribunal  which  has  settled  all  these  questions,  and 
after  a  more  full  argument  than  we  have  had  here.  I  therefore  feel  bound 
to  reject  the  proposition  to  offer  these  matters  in  evidence,  on  the  brief 
grounds  I  have  stated. 

The  Attorney-Greneral  reminded  the  court  of  the  decision  of  Chief 
Justice  Spencer,  in  a  case  18th  Johnson,  to  show  that  this  decision  of  the 
court  would  be  found  on  examination  not  to  be  a  novelty. 

14 


mm 


'':%%: 


mm 


106 


GOULD'S   REPORTER. 


Mr.  Bradley  said  there  was  one  point  in  this  case,  which  had  not  been 
presented  to  tiie  Supreme  Court.  There  was  a  class  of  cases  in  which 
even  neutral  territory  may  be  entered  for  a  hostile  purpose — nominally 
neutral,  not  really  so.  That  class  of  cases  is  referred  to  in  the  celebrated 
letter  of  Mr.  Webster  to  Mr.  Fox,  in  the  last  paragraph  but  one,  which 
states  what  it  will  be  necessary  for  the  British  government  to  show,  in  order 
to  justify  the  attaek  on  the  Caroline.  Now  we  suppose  that  if  the  defend- 
ant  can  comply,  and  show  such  facts  as  would  exonerate  his  country  from 
the  act,  that  he  would  be  discharged.  It  can  be  shown  that  it  was  a  ne- 
cessary  act  of  war. 

Judge  Gridlcy. — Equivalent  to  lawful  war  1 

Mr.  Bradley. — Not  equivalent  to  lawful  war,  but  a  case  whera  even 
private  individuals  may  undertake,  and,  as  necessary  to  repel  impending 
danger,  may  act,  of  their  own  mind  and  will ;  under  the  necessity  of  self- 
defence,  instant  and  overwhelming,  leaving  no  choice  of  means — then  he 
would  be  exonerated.  We  offer  to  comply  with  this  case.  That  point 
was  qot  raised  in  the  Supremo  Court. 

Judge  Gridley  did  not  think  it  appeared  a  case  of  that  description.  On 
an  indictment  for  murder,  who  ever  heard  that  it  might  be  shown  that,  in 
self-defence,  a  man  might  cross  the  Niagara  and  destroy  his  adversary  for 
fear  he  might  destroy  him.  I  think  it  would  not  approach  a  case  of  self- 
defence.     That  will  not  justify  the  murder  of  Durfee. 

Mr.  Bradley  said  the  point  which  they  proposed  to  establish  was,  that 
the  Navy  islanders  were  the  striking  party,  and  were  within  striking 
reach. 

Judge  Gridley. — Suppose  the  Navy  Islanders,  if  they  could  get  a  forty- 
two  pounder,  could  do  immense  injury  to  those  on  the  opposite  shore,  and 
an  individual  has  possession  of  it ;  and  the  Canadians,  for  fear  that  the 
Navy  Islanders  will  obtain  that  forty-two  pounder,  go  with  a  body  of 
men  and  take  that  instrument  and  kill  its  owner ;  that  would  be  justified 
by  this  doctrine.     The  illustration  shows  that  the  doctrine  is  unsound. 

The  defence  is  on  the  other  ground. 

Mr.  Spencer. — And  in  an  application  to  the  court  of  last  resort  I  hope 
no  obstacle  will  be  thrown  in  the  way. 

Judge  Gridley. — You  shall  have  every  facility  from  me. 

Mr.  Spencer. — We  now,  as  rapidly  as  may  be,  shall  proceed  to  lay  be- 
fore the  court  the  evidence  taken  under  commission. 

Mr.  Hall  said  these  depositions  were  taken  under  somewhat  peculiar  cir- 
cumstances. It  was  under  a  law  which  was  perhaps  peculiar  to  our  own 
State  ;  there  was  no  such  power  in  England  or  in  Canada,  and  he  doubted 
whether  there  was  such  a  law  in  any  other  of  the  United  States — certainly 
there  was  not  under  the  United  States  government — to  take  depositions  in 
criminal  cases  in  foreign  countries  to  be  used  on  the  trial  of  a  case  in  this 
country.  They  have  been  taken  in  great  haste,  and  I  have  many  objections 
to  them,  in  various  parts.  I  think  the  manner  in  which  they  have  been 
executed  is  such  as  to  show  that  we  have  not  the  fair  responses  of  the  wit- 
nesses. Under  these  circumstances  I  shall  ask  the  indulgence  of  the 
court  for  making  my  objections  to  them,  more  full  than  under  any  other 
circumstances  whatever.  I  will  ask  that  the  interrogatories  be  read 
previous  to  the  answers  in  each  case ;  and  as  they  are  so  far  from  direct 
answers,  I  would  suggest  that  the  answers  should  be  before  your  Honor, 
that  they  may  be  individually  decided  on.  . 


Mcleod's  trial. 


107 


It  was  a  ne- 


Mr.  Spencer  again  proposed  to  read  the  interrogutorios  and  answers  of 
Sir  Allan  McNab,  taken  in  Canada  under  commission,  and  he  suggested 
to  the  court  that  Mr.  Bradley  should  read  the  interrogatories,  and  Mr. 
Gardner  the  answers. 

The  Attorney-General  objected  to  these  depositions.  The  first  ground 
of  objection  vvus,  that  Col.  McNab  read  his  answers  from  a  manuscript, 
which  had  been  previously  prepared. 

Judge  Gridley. — He  had  the  interrogatories  ? 

The  Attorney- General. — Yes. 

Mr.  Spencer  explained,  that  one  commission  had  been  issued,  under 
which  Sir  Allan  McNab's  examination  was. taken;  but  afterwards  it  was 
found  necessary  to  obtain  some  other  answers — another  commission  was 
issued,  and  to  save  time,  he  may  have  been  permitted  to  read  the  answers 
he  had  given  under  the  previous  commission,  to  such  questions  as  were 
merely  repeated  in  the  second  commission. 

The  Attorney-General  said  there  were  precedents  for  the  rejection  of 
testimony  taken  under  such  circumstances. 

Judge  Gridley  thought  the  course  should  be  to  move  the  Supreme  Court 
for  the  suppression  of  these  depositions,  if  there  were  sufficient  cause,  as 
they  were  now  the  records  of  the  Court. 

Tlie  Attorney-General  said  they  were  in  this  position,  that  these  depo- 
sitions had  been  very  recently  brought  into  the  court. 

Mr.  Spencer  replied.  If  these  depositions  are  set  aside,  does  the  learned 
Attorney-General  think  a  new  commission  will  not  be  issued  ?  The 
examinations  were  taken  in  the  presence  of  counsel  for  the  people  as  well 
as  for  the  prisoner,  and  it  was  a  monstrous  proposition  to  set  them  aside 
now,  on  a  mere  technicality. 

The  Attorney-General  said  it  was  his  duty  to  try  this  cause  according 
to  law.     This  was  an  objection  which  went  to  the  merits  of  the  case. 

Judge  Gridley  said  he  could  conceive  a  case  in  which  an  illiterate  man 
might  have  a  set  of  answers  imposed  upon  him,  if  this  practice  were  to  be 
allowed. 

The  Attorney-General  said  the  test  of  accuracy  would  be  the  relation 
of  the  same  story,  without  reference  to  any  document  to  aid  the  memory. 
The  poet  makes  Hamlet  say,  as  the  best  test  of  the  soundness  of  his  in- 
tellect, "  Bring  me  to  the  test,  and  I  the  matter  will  reword."  It  was  an 
important  point  to  aid  them  in  determining  whether  these  relations  could 
be  relied  on. 

The  Attorney-General  said  there  was  another  objection ;  the  witness 
had  refused  to  answer  one  of  the  interrogatories  which  was  asked — who 
gave  him  the  information  that  the  Caroline  was  coming  down  ?  He  said 
he  received  the  information  from  gentlemen  in  Buffalo  and  Black  Rock, 
whose  names  he  declined  furnishing. 

Mr.  Spencer  said  if  this  was  a  reason  for  excluding  the  depositions,  he 
should  be  somewhat  astonished. 

Mr.  Hall  relied  upon  a  decision  of  Chief  Justice  Nelson,  who  excluded 
depositions  when  a  material  question  had  not  been  answered ;  but  he 
wished  this  to  go'rather  to  the  credit  of  the  witness  than  to  the  exclusion 
of  the  deposition.  He  also  objected  to  great  portions  of  these  depositions, 
which  related  to  the  defence  attempted  to  be  set  up,  and  which  the  Court 
had  rejected. 

The  Court  struck  out  several  answers  which  related  particularly  to  the 


108 


GOULD'S   REFORTEE. 


!■ 


employment  of  the  invading  force  by  the  colonial  authorities,  retaining  un. 
»ier  the  rule  laid  down  during  the  trial,  such  portions  as  give  the  jury  the 
general  history  of  the  transaction.  The  court,  however,  would  prefer  the 
reading  of  the  whole  of  the  depositions  as  the  better  mode  of  saving  time, 
and  as  no  evil  could  arise  out  of  it,  the  whole  story  having  been  had  out 
from  the  witnesses  in  the  course  of  the  trial.  He  said  he  should  take  care 
to  guard  the  jury  on  this  subject  in  the  summing  up. 

The  following  Commission  and  Interrogatories  were  then  read  : — 

[l.  s.]  The  people  of  the  State  of  New  York,  by  the  grace  of  Grod  free 
ctnd  independent — To  Seeker  Brough,  Esq.,  Adam  Wilson,  Esq.,  James 
E.  Small,  Esq.,  James  Ilarvey  Price,  Esq.,  and  Francis  Hinks,  Esq.,  all 
of  Toronto,  in  the  province  of  Canada.     Greeting : 

Whereas  it  appears  to  our  Supreme  Court  of  Judicature  that  certain  wit- 
nesses, whose  testimony  is  material  on  the  trial  of  a  certain  cause  now 
pending  in  our  said  court  between  us  and  Alexander  McLeod,  reside 
hcyonil  the  jurisdiction  of  our  said  court,  and  within  Her  Majesty's  pro- 
vince of  Canada,  and  whose  personal  attendance  cannot  be  procured  on 
the  trial  of  the  said  cause  : 

We  therefore,  in  confidence  of  your  prudence  and  fidelity,  have  appointed 
you,  and  by  these  presents  do  appoint  you  commissioners  to  examine  Sir 
Allan  N.  McNab  of  Hamilton,  Barrister  at  law.  Captain  Andrew  Drew,  R. 
N.,  of  Woodstock,  John  Gordon  of  Toronto,  Edward  Zealand  of  Hamilton, 
Richard  Arnold  of  Wellington-square,  John  Elmsly  of  Toronto,  Christopher 
Bier  of  Upper  Canada,  Neil  McGregor  of  Chippewa,  Thomas  Hector  of 
Toronto,  Russel  Inglis  of  Toronto,  John  Battersby  of  Upper  Canada,  Shep- 
herd McCormick  of  the  same  place,  and  George  Chalmers  of  Trafalgar,  the 
witnesses  aforesaid,  together  with  such  other  witnesses  as  either  party  may 
produce  before  you,  or  either  or  any  of  you ;  and  therefore  we  authoi'ize  and 
empower  you,  or  any  or  cither  of  you,  at  certain  days  and  places  to  be  by 
you  or  any  or  either  of  you  for  that  purpose  appointed,  diligently  to  ex- 
amine the  said  witnesses  on  the  interrogatories  hereunto  annexed,  on  oath 
to  be  administered  by  either  of  you ;  and  to  cause  such  examination  to  be 
reduced  to  writing  and  signed  by  such  witnesses,  and  him  or  those  of 
yourselves  by  whom  such  examination  be  taken,  and  then  to  return  the 
same,  annexed  thereto,  unto  Hiram  Denio,  Esq.,  clerk  of  the  Supreme  Court, 
Utica,  New  York,  by  mail,  enclosed  under  the  seal  of  him,  or  those  of  you 
by  whom  sich  examination  shall  be  taken.  Witness,  Samuel  Nelson,  Esq., 
Chief  Justice  of  our  said  Supreme  Court  of  Judicature,  at  the  academy  in 
the  city  of  Utica,  on  the  sixth  day  of  July  in  the  year  of  our  Lord  one  thou- 
sand eight  hundred  and  forty-one — H.  Denio  Clerk,  Gardner  and  Bradley 
Attorneys. 

Let  the  within  commission  be  returned  by  mail,  directed  to  "  Hiram 
Denio,  Esq.,  Clerk  of  the  Supreme  Court,  Utica,  New  York." 

ELIAS  RANSOM,  Jr. 

First  Judge  of  Niagara  County  Court,  and  Counsellor  of  the  Sup.  Court. 

The  execution  of  the  within  commission  will  appear  by  the  document 
hereunto  annexed,  dated  this  21st  day  of  September,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  forty-one — J.  H.  Price,  commis- 
sioner. 

The  persons  to  whom  such  commission  shall  be  directed,  or  any  of  them, 


Mcleod's  trial. 


10ft 


staining  un- 
the  jury  the 
1  prefer  the 
laving  time, 
ccn  had  out 
id  take  care 

ad:— 

of  God  free 
Esq.,  James 
ks,  Esq.,  all 

certain  wit- 
cause  now 
Leod,  reside 
ajesty's  pro- 
irocured  on 

ve  appointed 

examine  Sir 

w  Drew,  R. 

)f  Hamilton, 

Christopher 

s  Hector  of 

mada,  Shep- 

[rafalgar,  the 

party  may 

uthorize  and 

es  to  be  by 

ntly  to  ex- 

led,  on  oath 

nation  to  be 

or  those  of 

return  the 

reme  Court, 

ose  of  you 

son,  Esq., 

academy  in 

d  one  thou- 

nd  Bradley 

to  "  Hiram 

OM,  Jr. 
up.  Court. 

document 
jar  of  our 
commis- 

ly  of  them, 


unless  otherwise  expressly  directed  therein,  shall  execute  the  same  as 
follows : — 

1.  Thi\v  or  any  one  of  them,  shall  publicly  administer  an  oath  to  the  wit- 
nesses  named  in  the  comniissiun,  that  the  answers  given  by  such  witnesses 
to  the  interrogatories  proposed  to  them  shall  be  the  truth,  the  whole  truth, 
and  nothing  but  the  truth  ; 

2.  They  shall  cause  the  examination  of  each  witness  to  be  reduced  to 
w  riting,  and  to  be  subscribed  by  him,  and  certified  by  such  of  the  com- 
missioners as  are  present  at  the  taking  of  the  same  ; 

3.  If  any  exhibits  are  produced,  and  proved  before  them,  they  shall  l)e 
annexed  to  the  depositions  to  which  they  relate,  and  shall  in  like  manner 
be  subscribed  by  the  witness  proving  the  same,  and  shall  be  certified  by 
llie  commissioners ; 

4.  The  commissioners  shall  subscribe  their  names  to  each  sheet  of  the 
depositions  taken  by  them  ;  they  shall  aimex  all  the  depositions  and  exhibits 
to  the  commission,  upon  which  their  return  shall  be  endorsed,  and  they  shall 
close  them  up  under  their  seals,  and  shall  address  the  same  when  so  closed 
to  the  clerk  of  the  court  from  which  the  commission  issued,  or  to  the  clerk 
of  the  county  in  which  the  venire  shall  bo  laid,  as  shall  have  been  directed 
c»n  the  commission,  at  his  place  of  residence. 

5.  If  there  is  a  direction  on  the  commission  to  return  the  same  by  mail, 
they  shall  immediately  deposit  the  packet  so  directed  in  the  nearest  post 
oflice. 

G.  If  there  be  a  direction  on  the  commission  to  return  the  same  by  an 
jigent  of  the  party  who  sued  out  the  same,  the  packet  so  directed  shall  be 
delivered  to  such  agent. 

A  copy  of  this  section  shall  be  annexed  to  every  commission  authorized 
bv  this  article." 

Interrogatories  to  be  administered  to  Andrew  Drew,  Edward  Zealand, 
Ivichard  Arnold,  John  Gordon,  Shepherd  McCormick,  John  Elmsly,  Chris- 
to])her  Bier,  John  Battersby,  Thomas  Hector,  (?eorge  Chalmers,  Russell 
Inglis.  and  such  other  witnesses  as  may  be  produced,  sworn  and  examined 
on  the  part  and  behalf  of  Alexander  McLeod,  in  a  suit  now  depending  in 
the  Supreme  Court  of  Judicature  of  the  people  of  the  State  of  New  York, 
before  the  justices  thereof,  at  the  suit  of  the  people,  for  murder,  before 
Seeker  Brough,  Esq.,  Adam  Wilson,  Esq.,  James  E.  Small,  E?q.,  James 
Harvey  Price,  Esq.,  and  Francis  Hinks,  Esq.,  all  of  Toronto,  or  before 
any  one  or  more  of  them,  under  and  by  virtue  of  a  commission  issuing  out 
of  the  said  Supreme  Court  of  Judicature,  and  under  the  seal  thereof,  pur- 
suant to  an  order  of  the  said  court,  entered  on  the  *20th  day  of  July,  1841. 
■  First.  Do  you  know,  and  if  so,  how  long  have  you  known  Alexander 
McLeod,  late  deputy-sheriffof  the  district  of  Niagara  in  Canada?  Down 
to  the  29th  day  of  December,  1837,  what  was  the  character  of  your  ar- 
(juaintance  with  him,  as  to  the  frequency  of  your  meeting  him,  and  the  nature 
of  your  intercourse  with  him,  whether  professional,  official,  or  otherwise  ? 
State  particularly  and  fully.    And  of  what  nation  is  he  a  citizen  or  subject  ? 

Second.  Do  you  recollect  the  time  of  the  destruction  of  the  Caroline  ? 
Were  you  in  Chippewa  about  that,time  ?  If  so,  how  long,  if  any,  before 
the  destruction  of  that  boat,  had  you  been  in  Chippewa  ? 

Third.  From  what  particular  place  did  those  who  went  to  destroy  the 
Caroline  embark  ?  And  about  how  long  were  they  standing  on  the  boat 
before  they  embarked  ?     Where  were  you  during  all  that  linne  ?     And 


1*4 


il-.- 


...  :^m. 


M 


•S''-.l 


110 


GOULD'S    REPORTER. 


what  opportunities  had  you  for  seeing  and  noticing  who  went  on  that  ex- 


pedition  ? 

Fourth. 

ombarkfd 

McLcod  ? 


State  fully  and  particularly. 

Wh(;n  those  who  went  in  the  boats  to  destroy  the  Caroline 
and  put  off  from  the  shore,  where  was  the  said  Alexander 
If  you  do  not  know  where  he  was,  do  you  know  any  place  where 
lie  was  not  ?     If  yea,  name  tliat  place. 

Fifth.  While  those  who  went  on  that  expedition  to  destroy  the  Caroline, 
were  standing  on  the  beach,  and  down  to  the  time  they  embarked  for  that 
purpose,  do  you  know  where  the  said  Alexander  McLeod  was  ?  If  nay, 
do  you  know  any  place  where  ho  was  not  ?     If  yea,  name  that  place. 

Sixth.  When  the  boats  in  wiiich  the  men  went,  pushed  otf  from  the 
Canada  shore  on  that  expedition,  where  did  you  go  to  ?  By  what  convey- 
ance did  you  go  ?     Who,  if  any  body,  was  in  command  of  it  ? 

Seventh.  Did  you  sec  all  the  persons  in  the  boat  you  went  in  from  Can- 
ada to  Schlosser  ?  What  can  yoii  say  as  to  the  presence  or  absence  of  the 
said  McLeod,  in  or  from  that  boat  on  its  way  to  Schlosser  ?  Where,  if  any 
where,  did  you  see  him  on  your  way  from  the  Canada  shore  to  Schlosser  I 

Eight.  Did  you  see  the  Caroline  on  the  night  of  her  destruction  ?  If  so, 
how  near  to  her  were  you  ?  If  upon  her,  in  what  parts  of  her  ?  Did  you 
go  on  her  before  or  after,  or  at  the  same  time  \vith  the  other  assailants  ? 
With  reference  to  the  time  that  the  other  assailants  left  the  Caroline,  how 
soon  did  you  leave  her  ?  What  can  5-ou  say  with  reference  to  the  presence 
of  the  said  Alexander  McLeod  among  the  assailants,  from  the  first  attack 
upon  the  Caroline  to  her  final  destruction. 

Ninth.  Do  you  know  any  thing,  and  if  so  what,  concerning  any  per- 
son, who  had  been  killed  during  the  attack  upon  the  Caroline,  being  con- 
veyed upon  the  dock  at  Schlosser,  and  left  remaining  there  ?  State 
fully  and  particularly  all  the  circumstances  attending  the  transaction. 

Tenth.  Did  you  see  the  men,  who  had  been  engaged  in  the  destruction 
of  the  Caroline,  when  they  landed  on  the  Canada  shore,  on  their  return 
from  Schlosser  ?  If  so,  what  can  you  say  as  to  the  said  Alexander 
McLeod  being  among  them  ?  If  you  saw  him  at  any  time  after  the  boats 
left  the  Canada  shore  for  the  purpose  of  destroying  the  Caroline,  and  before 
the  men  who  did  that  act  again  landed  on  the  Canada  shore  after  its  ac- 
complishment, when  was  it  that  you  so  saw  him  ? 

Eleventh.  How  many  boats  started  in  search  of  the  Caroline  ?  How 
many  reached  her  ?     How  many  returned  in  company  ? 

Twelfth.  Do  you  know  Sir  Allan  N.  McNab  ?  Where  was  he  at  the 
time  the  expedition  started,  as  you  have  above  stated,  in  pursuit  of  the 
Caroline  ?  By  whose  command  was  the  expedition  undertaken  ?  What 
directions  did  you  hear  him  give  in  reference  to  it  ?     State  fully. 

Thirteenth.  Who  was  in  command  of  the  expedition  ?  By  whose  orders 
did  he  take  such  command  ? 

Lastly.  Do  you  know  any  other  matter,  or  thing,  or  can  you  say  any 
thing  touching  the  matter  in  question  in  this  cause  that  may  tend  to  the 
benefit  and  advantage  of  the  said  Alexander  McLeod,  besides  what  you 
have  been  interrogated  unto  ?  Declare  the  same  fully  and  at  large,  as  if 
you  had  been  particularly  interrogated  thereto. 

The  foregoing  interrogatories  settled  and  allowed  this  11th  day  of 
September,  1841. 

ELIAS  RANSOM,  Jr. 

First  Judge  of  Niagara  County  Court,  and  Counsellor  of  the  Sup.  Court. 


I^ 

be 
Mcll 

the 
ofth 
Jam( 
all 


^^, 


Mcleod's  trial. 


Ill 


ine  ?     How 


Interrogatories  to  bo  administorntl  to  Sir  Allan  N.  McNab — a  witness  to 
be  produced,  sworn,  and  exnininfd  on  tiie  part  and  belialf  of  Alexander 
McLeod  in  a  suit  now  depending  in  the  Supreme  Court  of  Judicature!  of 
the  people  of  the  State  of  New  York,  before  the  justices  tliereof,  at  the  suit 
iif  the  people,  for  murder — before  Seelccr  lirough,  Ks(|.,  Adam  Wilson,  Hsq., 
James  E.  Small,  Esq.,  James  Harvey  Price,  lOsq.,  and  Francis  Minks,  Esq., 
all  of  Toronto,  or  before  any  one  or  more  of  them,  under  and  by  virtue  of 
a  commission  issuing  out  of  the  said  Supreme  Cout  of  Judicature,  and 
under  the  seal  thereof,  pursuant  to  an  order  of  the  said  court,  entered  on 
the  20th  day  of  July,  1841. 

First.  What  is  your  profession?     Where  do  you  reside? 

Second.  Do  you  know  whether  a  body  of  her  Britannic  Majesty's 
soldiers  were  assembled  at  Chippewa  in  the  inonth  of  December  in  the 
year  1837,  and  January  in  the  year  1838  ?  If  so,  how  many  were  there  ? 
What  was  the  occasion  on  which  they  assembled  ?  At  whose  call  and  for 
what  purpose  did  they  assemble  ?  Who  was  in  the  actual  command  there- 
•if?     State  fully  and  particularly. 

Third.  Who  was  lieutenant  governor  in  fact  of  the  said  province  of 
Upper  Canada  at  the  time  mentioned  in  the  preceding  second  inter- 
j'Oiratory  ? 

Fourth.  Was  the  said  Sir  Francis  Bond  Head  at  Chippewa  during  the 
months  mentioned  in  the  last  foregoing  interrogatory  ?  If  so,  wliat  part 
did  he  bear  in  furthering  or  opposing  the  objects  for  which  her  Ma- 
jesty's forces  had  assembled  in  that  place  ?  What  knowledge  had  ho  that 
you  were  in  command  of  the  forces  there  assembled  ? 

Fifth.  At  the  time  mentioned  in  the  preceding  interrogatories,  was  the 
Governor  General  of  her  Majesty's  provinces  of  Upper  and  Lower  Canada 
ut  Chippewa  1 

Sixth.  Do  you  remember  the  last  time  when  the  steamboat  Caroline 
came  down  from  Buffalo  previous  to  her  destruction.  What  use  was  she 
to  have  been  put  to,  according  to  the  information  you  had  and  believed  at 
the  time  she  thus  came  down  ?  What  determination,  if  any,  did  this  in- 
formation and  belief  induce  you,  as  the  commander  of  her  Majesty's  forces 
stationed  at  Chippewa,  to  form  in  reference  to  the  Caroline  ?  By  whom 
was  the  expedition  for  the  destruction  of  the  Caroline  commanded  to  be 
undertaken  ?  How  many  boats  were  engaged  in  it  ?  How  many  men  in 
each  boat  ?  Who  had  command  of  the  expedition  ?  Under  whose  author- 
ity did  he  take  such  command  ?  What  rank,  if  any,  did  he  hold  in  her 
Majesty's  naval  or  military  service  ?     State  very  fully  and  particularly. 

Seventh.  By  whom  was  the  purpose  of  this  expedition  first  divulged  ? 
To  whom  ?     Where  ? 

Eighth.  What  commands,  if  any,  were  given  to  Captain  Drew  as  the 
commander  of  such  expedition,  as  to  its  destination  ?  By  whom  were 
such  commands  given  ?  In  what  character  or  capacity  were  the  com- 
mands given  by  the  persons  giving  them  ?     State  fully  and  particularly. 

Ninth.  From  what  particular  place  did  those  who  went  on  that  expe- 
dition embark  ?  Wh^i.c  were  you  when  they  embarked  ?  Where  were  you 
when  the  boats  shoved  off  from  the  shore  ?  How  long  had  you  been  there  ? 
While  there,  what  portion  of  the  men  who  went  in  the  boats  did  you  parti- 
cularly notice  ?  How  near  them  were  you  ?  Among  them  or  otherwise  ? 
What  means  had  you  of  knowing  who  embarked  ?     State  particularly. 

Tenth.   Do  you  know  Alexander  McLeod,  late  deputy -sheriff  of  the 


f 


:v;i- 


pit 


H: 


112 


OOULD'8    REPORTER. 


Niagara  district,  in  the  province  of  Upper  Canada  ?  How  long  have  yau 
ivnowii  liirn  ?  Bfibrc  tho  evening  of  the  destruction  of  the  Caroline,  what 
had  b(!en  the  character  of  your  acquaintance  with  him,  us  to  the  frequency 
of  your  nieotin;!  Iiim,  the  nature  of  your  intercourse  with  him,  wliethcr 
professional,  oflicial,  or  otherwise  1     State  fully  and  particularly. 

Eleventh.  While  you  were  in  command  of  her  Majesty's  forces  at 
Chippewa,  and  bfifore  the  evening  of  the  destruction  of  the  Caroline,  had 
you  seen  said  McLcod  ?  If  yea,  state  particularly.  How  often  ?  Where  .' 
Whether  at  your  quarters  or  elsewhere  ?  And  what  was  the  character 
r)f  your  intercourse,  whether  official  or  otherwise?  Whether  business  or 
ollicrwise  ?  Had  you  se-^n  him  on  the  day  betbre  the  destruction  of  th<- 
( Caroline  ?     Either  at  your  quarters  or  elsewhere  ? 

Twelfth.  When  those  '>vho  went  in  the  boats  to  destroy  the  Caroliun 
•  •mbarked  and  the  boats  put  off  from  the  shore,  where  was  said  McLeod  ? 
If  you  do  not  know  where  he  was,  do  you  know  any  place  where  he  was 
not  ?     If  so,  name  if. 

Thirteenth.  Flow  long  after  the  boats  left  the  shore  on  the  expedition  to 
destroy  t!io  (Jarolino,  was  it  before  they  returned  to  the  Canada  shore 
again  ?  At  what  o'clock  ?  In  what  direction,  in  reference  to  the  Canada 
shore,  did  those  bo'its  proceed  ? 

Fourteenth.  When  those  boats  returned,  where  were  you  ?  Where 
were  you,  whon  all  the  men  in  those  boats  got  out  of  thorn  and  landed  on 
the  Canada  shore  I  When  they  landed,  how  near  to  them  were  you  ? 
What  portion  of  the  men  who  disembarked  did  you  observe  the  faces  of? 
If  you  cannot  tell  where  said  Alexander  McLcod  was  at  that  time,  can  you 
mention  any  place  where  you  know  he  was  not  ?     If  so,  name  it. 

Fifteenth.  Between  the  departure  of  the  boats  on  this  expedition  from  the 
Canada  shore,  and  their  return  to  it,  what  means  had  you  of  knowing  what 
became  of  the  Caroline  ?  What  appearances,  if  any,  did  you  see,  and 
what  sounds,  if  any,  did  you  hear  in  the  direction  of  Schlosser  ? 

Sixteenth.  Did  you  ever  furnish  the  Lieutenant  Governor  of  Upper 
Canada  with  the  names  of  the  officers  and  men  who  destroyed  the  Caro- 
line ?  If  yea,  was  the  name  of  the  said  Alexander  McLcod  among  those 
names  as  furnis|ied  ?     If  nay,  why  was  it  omitted  ? 

Seventeenth.  When  did  the  forces  under  your  command,  or  any  part 
of  them,  take  possession  of  Navy  Island  ?  Where  is  Captain  Drew  at  this 
time  ? 

Lastly.  Do  you  know  any  other  matter  or  thing,  or  can  you  say  any 
thing  touching  the  matters  in  question  in  this  cause  that  may  tend  to  the 
benefit  and  advantage  of  the  said  Alexander  McLeod,  besides  what  you 
liave  been  interrogated  unto  ?  Declare  the  same  fully  and  at  large,  as  if 
you  had  been  particularly  interrogated  thereto. 

The  foregoing  interrogatories  settled  and  allowed  this  10th  day  of  Sep- 
ttnnber,  1841.  _  ELIAS  RANSOM,  Jun. 

.  .^    ;.,.   ^  ^i.    First  Judge  of  Niagara  County  Court  and 
.      .^    j,*'"  ;     Counsellor  of  the  Supreme  Court. 

Interrogatories  to  be  administered  to  Niel  McGregor  and  such  other 
witnesses  as  may  be  produced,  sworn,  and  examined  on  the  part  and  be- 
half of  Alexander  McLeod,  in  a  suit  now  depending  in  the  Supreme  Court 
of  judicature  of  the  people  of  the  state  of  New  York,  before  the  justices 
thereof,  at  the  suit  of  the  people,  for  raurder,  before  Seeker  Brough,  Eiaq., 


•;;  H 


-1 


Mcleod's  trial. 


113 


Adam  Wilson,  Esq.,  James  E.  Small,  Esq.,  James  Mcrvey  Price,  Esq., 
and  Francis  Hincks,  Esq.,  all  of  Toronto,  or  b«.;fore  any  one  or  more  of 
them,  under  and  by  virtue  of  a  commission  issuing  out  of  the  said  Supreme 
Court  of  judicature,  and  under  the  seal  thereof,  pursuant  to  an  order  of 
the  said  court,  entered  on  the  20th  day  of  July,  1841. 

First.  Where  do  you  reside  ?  Do  you  know  any  person  of  the  name 
of  McGregor,  who  is'  now  or  was  in  October,  November,  or  December 
last,  a  clerK  for  a  gentleman  in  Chippewa,  whose  name  is  Macklem  ?  If  so, 
give  the  christian  name  of  the  said  McGregor  and  of  the  said  Macklem, 
and  how  long  the  clerkship  of  the  said  McGregor  has  continued. 

Second.  During  the  last  fall,  was  any  person  whose  last  name  is 
McGregor,  other  than  the  individual  of  that  name  mentioned  by  you  in 
your  answers  to  the  foregoing  interrogatory,  a  clerk  for  any  person  whose 
name  is  Macklem,  residing  in  Chippewa. 

Third.  What  relation  is  this  McGregor,  named  by  you  in  your  answer 
to  the  first  foregoing  interrogatory,  to  yourself. 

Fourth.  Do  you  know  Alexander  McLeod,  late  dcputy-sherilF  of  Ni- 
agara district,  in  the  late  province  of  Upper  Canada  ?  If  so,  l»ow  long 
have  you  known  him  ? 

Fifth.  Did  you  in  January,  1838,  or  at  any  other  time,  in  Chippewa  or 
at  any  other  place,  have  any  conversation  with  said  Alexander  McLeod 
in  regard  to  the  destruction  of  the  Caroline  ?  If  so,  what  did  he  say  he 
had  done  during  the  attack  on  that  boat  ?  What,  if  any  thing,  did  he  say 
as  to  his  being  one  of  the  company  who  destroyed  the  Caroline  ? 

Sixth.  How  long  before  the  burning  of  the  Caroline  had  you  known  said 
McLeod  ?  Before  that  event,  have  you  seen  him  in  Chippewa  in  the 
month  of  December,  1837  ?     If  so,  how  often  ?     State  particularly. 

Seventh.  In  December,  1837,  in  whose  employ  were  you,  and  in  what 
capacity  ? 

Eighth.  On  the  29th  day  of  December,  1837,  did  you  know  of  the 
selection  of  a  body  of  men  to  go  on  some  secret  expedition  ?  State  par- 
ticularly what  you  know  about  it. 

Ninth.  Did  these  men  thus  selected  assemble  in  any  one  place  in  Chip- 
pewa ?  If  so,  state  what  took  place  at  that  assembly  as  to  some  of  the 
men  refusing  to  go,  and  the  grounds  of  their  refusal ;  and  how  long  they 
were  assembled  together,  and  where  you  were  at  that  time. 

Tenth.  How  were  the  vacancies  in  the  body  made  by  these  refusals 
supplied  ? 

Eleventh.  Was  Alexander  McLeod  at  that  assembly,  or  his  name  among 
those  who  had  been  selected  to  go  on  that  expedition  ? 

Twelfth.  Did  those  men,  who  were  to  go  on  that  expedition,  assemble 
again  either  at  the  same  place  or  on  the  beach  ?  •  If  so,  where  did  they 
assemble  ?  Were  you  among  them  ?  What  opportunities  had  you  of 
distinguishing  the  individuals  who  were  at  this  last  meeting  ? 

Thirteenth.  What  can  you  say  as  to  the  presence  or  absence  of  the  said 
Alexander  McLeod  on  that  occasion  ? 

Fourteenth.  What  w*as  the  expedition  on  which  those  men  who  had 
been  thus  selected,  went  ?  And  where  was  the  object  of  the  expedition 
first  communicated  to  them  as  a  body  ?  Who  commanded  the  expedition  ? 
Answer  particularly. 

Fifteenth.  Did  you  accompany  it  ?  Who  commanded  the  boat  in  which 
you  went  ?    Who  commanded  each  of  the  other  boats  ?    How  many  boata 

15 


f 


■r<. 


•''ft^.^i- 


114 


OOUr.D  S   REPORTER. 


':."■•!'  , 


m: 


started,  and  how  many  reached  the  Caroline?     VVus  tlic  said  Alexander 
McLcnd  in  the  boat  in  which  yon  went,  or  in  any  oilier  of  tlu;in  ? 

Sixteenth.  Were  you  on  the  Caroline  tliut  nifxlit  ?  U'yea,  do  you  know 
where  the  said  Alexander  McLedd  was  then  ?  Can  you  name  any  place 
where  he  was  not  ?     If  ho,  name  it. 

Seventeenth.  After  your  return,  did  you  learn  tlio  names  of  all  the  per- 
sons  who  went  to  destroy  the  Caroline  ?  What  can  you  say  as  to  said 
JVIcLeod's  name  being  among  the  number  ?    State  the  circumstances  fully. 

Lastly.  Do  you  know  any  other  matters  or  things,  or  can  you  say  any 
thing  touching  the  matter  in  question  in  this  cause  that  may  tend  to  the 
benefit  and  advantage  of  the  said  Alexander  JMe[jeod,  besides  what  you 
have  been  interrogated  unto  ?  Declare  the  same  fully  and  at  large,  as  if 
you  had  been  particularly  interrogated  thereto. 

The  foregoing  interrogatories  settled  and  allowed  this  11th  day  of  Sep- 
tember, 1841.  ELIAS  RANSOM,  Jr. 

First  Judge  of  Niagara  County  Court  and 
Counsellor  of  the  Supreme  Court. 

Interrogatories  to  be  ndminist'^red  by  way  of  cross-examination  to  Sir 
Allan  McNab,  Neil  McCregor,  Andrew  Drew,  Edward  Zealand,  Richard 
Arnold,  Shepherd  McCormick,  John  Elmsley,  Christopher  Bier,  John 
Batter.sby,  Thomas  Hector,  George  Chalmers,  and  Russell  Inglis,  and  such 
other  witnesses  as  may  be  produced,  sworn,  and  examined  on  the  part  and 
behalf  of  Alexander  McLeod,  in  a  suit  now  depending  in  the  Supreme  Court 
of  judicature  of  the  people  of  the  state  of  New  York,  before  the  justices 
thereof,  at  the  suit  of  the  said  people,  for  murder,  before  Seeker  Brough, 
Esq.,  Adam  Wilson,  Esq.,  James  E.  Small,  Esq.,  James  Harvey  Price, 
Esq.,  and  Francis  Hincks,  Esq.,  or  before  any  one  or  more  of  them,  un- 
der and  by  virtue  of  a  commission  issuing  out  of  the  said  Supreme  Court 
of  judicature,  and  under  the  seal  thereof,  pursuant  to  an  order  of  the  said 
court,  entered  on  the  twentieth  day  of  July,  in  the  year  of  our  Lord  one 
thonsand  eight  hundred  and  forty-one. 

First  cross-interrogatory.  Where  do  you  reside,  and  how  long  have  you 
resided  there  ?  Are  you  a  native  of  Canada  ?  If  not,  of  what  country 
are  you  a  native,  and  how  long  have  you  resided  in  Canada  ?  What  is 
your  age  and  occupation  ? 

Second.  In  what  capacity  or  command  were  you  at  Chippewa,  in  De- 
cember, in  the  year  of  our  Lord  one  thousand  eight  hundred  and  thirty- 
seven  ?  Were  you  in  command  of  or  attached  to  any  vessel  ?  If  so, 
state  what  vessel,  her  size,  and  character,  and  in  what  capacity  you  were 
attached  ?     If  attached  to  the  land  forces,  state  in  what  capacity  ? 

Third.  Did  you  see  Alexander  McLeod  the  week  preceding  the  burn- 
ing of  the  Caroline  ?  How  often  ?  Once,  twice,  thrice,  or  more  ?  State 
particularly  on  what  days  and  hours  of  the  day.     At  what  places  ? 

Fourth.  In  any  interview  with  McLeod,  previous  to  the  burning  of  the 
Caroline,  did  you  converse  with  him,  or  hear  J^im  converse  or  speak  on 
the  subject  of  the  Caroline  1 

Fifth.  Did  he  tell  you  at  any  time  that  he  had  been  at  Buffalo  and  seen 
the  Caroline  ?  Did  he  tell  you  she  was  preparing  to  come  to  Navy  Island  ? 
Did  he  describe  to  you  her  size  and  equipments  and  character,  or  tell  you 
any  thing  about  her  ?  State  fully  what  he  told  you,  together  with  the  time 
and  place. 


Iiik;,  ^ 

niglit- 

wlmt  ' 

Scv 


ago. 


v\l 


•^ff^-iU 


■■■:.     ^fiA-' 


km 


MCLEOD'S  TUIAL. 


11") 


I  Alexander 
n? 

0  you  know 
!  uny  |)lacf 

ull  tlie  per- 
r  as  to  said 
tnnces  fully, 
/ou  sny  any 
r  tend  to  the 
cH  what  you 

largo,  as  it' 

day  of  Sep- 

ty  Court  and 
e  Court. 

nation  to  Sir 
and,  Richard 
•  Bier,  John 
tUs,  and  such 

1  the  part  and 
uprcnic  Court 
e  the  justices 
icker  Brough, 
larvoy  Price, 

of  them,  un- 
jpreme  Court 
er  of  the  said 
our  Lord  one 

ong  have  you 
what  country 
a?     Whatia 

)ewa,  in  De- 
and  thirty. 
Issel  ?  If  80, 
]ity  you  were 

fity? 

ig  the  burn- 

lore  ?    State 

laces  ? 

jrning  of  the 
or  speak  on 

talc  and  seen 
^avy  Island  ? 
|r,  or  tell  you 
irith  the  time 


Sixth.  Did  you  the  night  nr  tnnrninjT  hofore  the  htirnin^r  of  the  Caro. 
liiK.',  or  nt  any  other  time  aiui  wlicrc,  ;mil  al  what  hour  in  the  day  or 
night-time,  go  with  McLfod  in  a  small  boat  around  Navy  island  ?  If  so, 
what  was  the  object  of  this  excursion  ? 

Sivenlli.  Did  McLeod,  ns  you  know,  or  as  you  have  understood  from 
him,  f^o  around  Navy  Island  iho  nij^ht  (jr  iiiiiriiini^',  or  at  si>me  other  and 
4  what  other  time  before  tlio  Caroline  w!>s  destroyed  .'  And  what  was  the 
5  object  of  his  doing  so,  as  you  know  or  have  understood  from  him  ?  And 
who  went  with  him  ?  And  how  did  he  <ro  ?  What  oceurred  on  his  pass, 
age,  and  how  long  was  he  gone,  and  at  what  hour  of  the  day  did  ho 
return  ? 

Eighth.  Did  McLeod  at  uny  time  s|)cak  with  you  on  the  subject  of 
cutting  out  or  destroying  the  Caroline  in  case  she  should  come  down  to 
Navy  Island. 

Ninth.  When  did  the  plan  of  destroying  the  Caroline  first  occtir  to  you  ? 
Or  when  was  it  first  coinmuniouted  to  you  ?  And  did  you  communicate  it 
or  any  part  of  it  to  McLeod  ?  Or  was  he  present  when  it  was  communi. 
cated  to  you  ?    Or  did  McLeod  know  of  it  ? 

Tenth.  When  did  you  first  discover,  or  w'lo  first  informed  you,  and 
where  and  when,  that  the  Caroline  was  at  Schlosser  ?  Did  McLeod  at 
any  time  so  inform  you  ?  And  when  did  you  commence  your  prepara- 
tions for  the  attack  upon  her  ?  Where  did  you  go  after  the  return  of  the 
cxpedftijn  ? 

Eleventh.  Were  you  at  Davis'  tavern  at  Chippewa  the  day  after  the 
night  of  the  burning  of  the  Caroline  ?  Did  you  sec  McLeod  there  ?  If 
so,  at  about  what  hour  of  the  day  ?  Did  you  there  converse  with  him  about 
the  burning  ?  Did  you  on  the  Monday  or  any  other  day  after  the  burning 
of  the  Caroline  see  McLeod  at  or  near  Davis'  tavern,  and  converse  with 
him  about  the  burning  ? 

Twelfth.  Were  you  present  at  the  burning  of  the  steamboat  Caroline  at 
Schlosser  on  or  about  the  29th  December,  eighteen  hundred  and  thirty- 
seven,  or  were  you  concerned  in  any,  and  what  manner  in  the  expedition 
for  that  purpose  ?  Or  were  you  present  at  the  embarkation  of  the  cxpe- 
dition  at  Chippewa,  and  did  you  see  it  embark  ?  About  how  many  were 
on  the  shore  at  and  near  the  place  where  the  boats  started  from,  in  your 
opinion  ? 

Thirteenth.  How  many  persons,  as  you  know  or  according  to  your  best 
judgment,  embarked  in  the  expedition  ?  And  did  you  know  all  the  per- 
sons  who  entered  the  boats  and  went  on  this  enterprise  ?  Were  you  one 
of  them  ?  How  many  were  in  the  boat  you  went  in  ?  Were  you  on  the 
Caroline  ?   What  part  did  you  take  in  her  destruction  ?    By  acts  or  words  ? 

Fourteenth.  What  kind  of  boats  were  used  ?  How  many  were  there  in 
each  boat  ?  Were  all  the  boats  of  nearly  the  same  size  and  description  ? 
And  how  many  boats  were  there  ?, 

Fifteenth.  Did  you  know  all  who  embarked  in  the  expedition  ?  Did  you 
see  the  face  of  and  recognize  each  one  who  went  in  the  expedition  ? 
[Please  name  all  whom  you  saw  and  recognised.] 

Sixteenth.  Did  you  know  all  who  were  in  the  same  boat  with  you  ? 
And  did  you  speak  to  or  recognise  each  one  of  them  ?  Please  [name 
them  and]  state  who  commanded  the  expedition,  and  who  commanded  the 
boat  you  were  in  ? 

Seventeenth.  Did  you  return  in  the  same  boat  in  which  you  embarked  ? 


Ji'. 


'u^^^-^ 


ii.( 


M- 

'krm^ 

:M 


116 


OOnLD'S   REPORTRR. 


And  did  the  same  pcrHona  return  with  you  in  your  boat  that  embarked  willi 
you  1 

Ki^htccntb.  Did  all  the  bouts  which  embarked  in  the  expedition  reach 
the  (.'iintiine  ?  How  many  failed  ?  Who  eomnmnded  them  ?  What  became 
of  tlusm  i  Did  the  boatH  which  reached  the  Caroline  arrive  at  or  near  the 
same  time  ?    Which  arrived  first  t 

Nineteenth.  Was  there  any  man  in  the  expedition  by  the  name  of 
McFiCod  ?  If  80,  where  at  that  time  did  ho  reside  ?  What  was  his  busi. 
ness  or  occupation  ?  About  how  old  was  he,  in  your  opinion  1  And  what 
was  his  giv(!n  name  ?  And  in  what  character  or  capacity  did  he  belong 
to  the  expedition? 

Twentieth.  At  which  wharf  or  pier  did  the  expedition  embark  ? 

Twenty-first.  Did  the  boats  in  which  the  expedition  embarked  all  lie  at 
the  same  wharf  or  landing-place  ?  If  not,  state  at  what  wharfs  or  piers  or 
landing-places,  and  how  far  they  were  apart.  Did  the  boats  all  start  at  the 
same  time  ? 

Twenty-second.  Did  the  boats  all  return  at  the  same  time?  Did  the 
whole  expedition  disembark  at  the  same  time  ?  And  at  the  same  place  ? 
And  did  you  see  and  recognise  all  the  persons  whom  you  saw  embark  ? 

Twenty-third.  Did  the  persons  composing  the  expedition  belong  to  the 
regular  army  ?  or  navy  ?  or  were  they  citizens  and  volunteers,  or  were 
they  part  citizens  and  part  soldiers  or  sailors?  How  were  the  men  pro- 
rurod  ?  Were  they  drafted  or  levied  by  military  orders,  or  did  they  come 
as  volunteers  ?  Did  they  go  into  the  boats  separately  from  time  to  time 
as  they  volunteered,  or  did  they  march  up  and  enter  the  boats  in  a  body  ? 

Twenty-fourth.  Was  the  force  composing  the  expedition  displayed  in 
any  military  order,  immediately  previous  to  its  embarkation  ?  Was  it 
so  displayed  or  paraded  in  military  form  immediately  on  its  disem- 
barkation? 

Twenty-fifth.  Were  the  persons  composing  the  expedition  dressed  as 
soldiers,  or  as  sailors,  or  as  citizens?  Were  they  dressed  in  any  uni- 
form  ?  Were  they  dressed  as  usual  and  customary  for  them  and  in  their 
own  clothing  ?  Describe  particularly  what  kind  of  hats  or  caps,  and 
what  kind  of  coats  or  over-coats  were  commonly  worn  ? 

Twenty-sixth.  How  was  the  party  armed  ?  and  where  and  from  whom 
were  their  weapons  and  dresses  procured  ? 

Twenty-seventh.  A  fit  r  the  expedition  returned,  did  the  force  continue 
together,  or  did  it  dispene?  If  together,  how  long  did  it  continue  toge. 
ther? 

Twenty-eighth.  At  "'^m  t'me  of  the  night  did  the  force  disembark  ? 
was  it  moonlight  ?  or  cloudy  ?  Describe  particularly  the  character  of  the 
night.  Where  did  the  force  go  after  its  return  ?  were  they  together  that 
morning  at  sunrise  ?  If  so,  where  have  you  seen  them  together  since  ? 
when  and  where  ?  Have  you  since  seen  that  force,  or  any  part  of  it, 
armed  and  equipped  as  it  was  that  night  ?  If  so,  state  particularly  whom 
you  have  seen  of  the  expedition  so  armed,  and  when  ? 

Twenty-ninth.  At  about  what  hour  in  the  night  did  the  expedition  em- 
bark? 

■  Thirtieth.  Were  you,  or  was  any  one  of  the  assailing  party  wounded 
in  the  attack  upon  the  Caroline  ?  Was  any  one  killed  ?  State  who  were 
killed  [and  who  were  wounded.] 

Thirty-first.  Was  any  resistance  made  by  the  crew,  or  by  the  persons 


mcm:oi)  s  trial. 


117 


nbarktid  with 


tid  from  whom 


iittiichi'd  to  the)  Htciimboat  Ciirolinc  ?     Had  thoy  any  wo»|ion»  ?     Of  whut 
kiml  wfH!  they  ? 

Thirty-Mfcoiul.  Did  th»!y  discharj^o  iiiiy  ^  \us  or  pistols  ?  or  use  nrjy 
swords  or  i)il<('a,  or  othor  niilitiiry  woupon  ?  Wh«  the  bout  nrmi;d  if)  nny 
tniiniu'r  ?  Wrro  any  cannon,  or  fire  arms,  or  militftry  atorrH,  or  ammuni- 
tion, or  itrovisions,  or  miiiiition.s  of  war  of  nny  kind  or  d(  Mcription  found 
on  hoard  thf  (Jarolino  ?     !f  lo,  stato  parlioiilarly  what  thoy  wcri-  ? 

Thirty-third.  Was  any  ono  of  tht!  pc-rsons  found  on  hoard  tho  Carohn'i 
killnd  or  wounded  ?  How  many  kiilud  /  How  many  wounded  ?  Did  y(tu 
kill  or  wound  any  ono  ?  Did  you  hcc  any  ono  kilUid  or  wounded  ?  Did 
you  discharge  a  gun  or  pistol  ?  Or  strike  any  ono  with  a  sword  or  pike, 
ur  oth(!r  weapon  ? 

Thirty-fourth.  IIow  many  persons,  as  you  know,  or  have  reason  to  be. 
hevo,  were  in  tiie  (.'urolint;  wh(!n  siie  was  cut  loose  and  sent  over  the  fulls  ? 

Thirty-filth.  Did  you,  or  any  of  tht;  attacking  party,  go  on  .shore  al 
Schlosscr  ?  Did  you,  or  any  of  the  attacking  party,  go  into  tho  warehouse 
near  tho  wharf  ? 

Thirty-sixth.  Did  you,  or  any  one  of  the  attacking  party,  take  and 
carry  away  from  the  Caroline  any  articles  of  her  furniture,  such  as  beds 
and  bed  furniture,  lamps,  candles,  or  other  articles,  or  any  articles  of  dress, 
as  coats,  hats,  boots,  &c.,  or  any  trunks,  or  other  property  found  on  board 
the  boat?  Or  were  any  articles  whatever  taken  from  tl.o  Caroline  and 
carried  to  Chippewa  ? 

Thirty-seventh.  When  did  you  first  hear  that  the  steamboat  Caroline 
was  coming  down  from  Buffalo,  in  tho  State  of  New  York,  to  Schlosser, 
or  Navy  Island  ?  Who  informed  you  ?  Please  name  the  persons  ?  Did 
Alexander  McLcod  so  inform  you  ?  If  so,  when,  and  where,  and  how 
many  times  ? 

Thirty-eighth.  Do  you  know,  or  have  you  ever  seen  or  hoard  of  a  per- 
son by  the  name  of  Sylvanus  S.  Rigby  ?  If  yea,  when  did  you  first  know, 
or  see,  or  hear  of  him  ?  Was  he  in  any  way  engaged  in  her  Britannic 
majesty's  service  in  the  month  of  December,  eighteen  hundred  and  thirty, 
seven  ?    If  yea,  when,  and  in  what  capacity  ? 

Thirty-ninth — Did  you  know  him  or  had  you  heard  of  or  seen  him 
before  the  Caroline  was  destroyed  1 

Fortieth — Did  you  ever  receive  any  communication  or  information 
from  him  either  directly  or  indirectly  1 

Forty-first — Was  he  on  board  the  Cfaroline  when  she  was  attacked,  as 
you  know  or  have  heard  from  him  1     If  yea  in  what  capacity  1 

Forty-second — Did  he,  in  any  way  as  you  know,  or  have  under- 
stood from  him,  give  the  pnrty,  or  any  one  or  more  of  them  who  at- 
tacked the  Caroline,  at,  or  before,  or  about  the  time  she  was  attack- 
ed, to  understand  that  she  was  unarmed  1  or  that  those  on  board  of 
her,  were  also  unarmed  1     Where  is  the  said  Rigby  now  1 

Forty-third — How  long  before  the  attack  of  the  Caroline  did  you 
see  him  1  When  was  it  1  Where  did  he  go  to  from  there,  as  you 
understand  or  know  1 

Forty-fourth — Did  Alexander  McLeod  go  to  Buffalo  in  the  month 
of  December,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  thirty-seven,  as  you  know  or  have  heard  him  say,  to  ascertain 
whether  any  steam-boat  was  to  be  taken  down  from  there  to  Navy 


'.f'  '• 


» 


>  11 


^m 


'tf 


n 


■ ''..».. 


118 


GOULD  S   REPORTEU. 


I 


'Mi 


Island  or  Schlosser,  or  near  there,  or  for  any  other  purpose  1  If  yea 
at  what  time  did  ho  ffo  {  How  long  did  he  remain  in  BufTalo  I 
What  did  ho  learn  on  the  snbject  1 

Forty-fifth — Did  Alexander  McLcod  tell  you  or  any  person  in 
your  presence,  the  day  or  night  before  the  Caroline  was  destroyed, 
or  at  any  other  time  before,  that  she  was  coming  down  from  Buffalo 
to  Navy  Island,  or  any  other  place  in  that  vicinity!  If  yea  at  about 
what  hour  in  the  day  or  night  time  was  it  ?  When  was  it  1  and  who 
was  present  1  and  what  did  he  say  on  that  subject  in  substance! 

Forty-sixth — Did  Alexander  McLeod  as  you  know  or  have  heard 
him  say  remain  at  Chippewa  the  day  before  the  Caroline  was  de- 
stroyed, and  keep  a  look  out  to  see  when  she  came  down  to  Navy 
Island  or  Schlosserl  If  yea  how  long  did  he  keep  a  look  out  for 
her,  and  did  he  discover  her  at  any  time  in  the  course  of  the  day, 
and  if  so  at  about  what  hour  1  Where  did  he  go  and  what  did  he 
do  and  say  after  he  discovered  her  ! 

Forty-seventh — Did  Alexander  McLeod  have  any  conversation, 
and  if  so  what  1  Was  it  with  you,  or  did  you  with  him  on  the  sub- 
ject of  the  Caroline  the  day  before  she  was  destroyed,  or  did  you 
with  any  other  person  in  his  presence,  or  did  he  with  any  other  per- 
sons in  your  presence  1  If  yea  how  many  1  at  abo"t  what  hour  or 
hours  in  the  day  1  Where  was  ii  (  Who  was  present  1  and  what  was 
the  substance  of  the  conversation  or  conversations  1  State  the 
whole  fully  and  very  particularly. 

Forty-eighth — Did  you  hear  Alexander  McLeod  say  before  the  Car- 
oline was  destroyed  that  she  ought,  or  could,  or  would,  or  might  be 
cut  out  or  destroyed,  or  any  thing  ^o  that  efTect  or  import  1 

Forty-ninth — Did  Alexander  McLeod  in  any  manner,  either  di- 
rectly or  indirectly,  advise  that  the  Caroline  should  be  cut  out  or 
destroyed,  or  attacked  as  you  know  or  have  understood  from  him  1 

Fiftieth — Did  you  ever  hear  McLeod  say  he  was  at  the  burning  of 
the  Caroline  or  took  any  part  in  the  expedition  % 

Fifty-first — How  many  boats  were  at  first  engaged  for  the  expedi- 
tion 1  Five  or  seven  1  How  many  started  from  Chippewa  village  1 
How  many  from  near  the  mouth  of  the  creek  above  Chippewa  { 
How  many  got  aground  on  Buckhorn  Island  1 

Fifty-second — Was  any  person  employed  to  pilot  the  boats  1  How 
many  1  In  which  boats  were  they  %  [VVhat  were  their  names  1]  Do 
you  know  or  have  you  heard  of  one  or  more  man  by  the  name  of 
Weiskuhu  (pronounced  Wiscoon,)  who  resided  at  Chippewa  in  1837  I 
Were  they  or  either  of  them,  or  any  man  of  that  name  in  the  expedition  ? 

Fifty-third — If  to  the  twelfth  and  thirteenth  direct  interrogatories 
you  answer  that  the  expedition  was  undertaken  by  command  of 
Sir  Allan  N.  McNab,  state  whether  his  order  was  public  or  private, 
in  writing  or  verbal !  If  verbal,  what  was  its  language  or  the  sub- 
stance of  it  as  near  as  you  can  recollect  1  Was  it  a  permission  or  a 
command  1  To  whom  was  it  addressed  1  When  and  where  was  it 
given  \  On  what  day  and  at  what  hour  of  the  day  1  Ip.  whose 
presence  % 

Fifty-fourth — Was  there  any  armed  force  stationed  on  land,  at  or 
near  the  wharf  where  the  Caroline  was  lying  \    Were  you  attacked 


allo\ 


MCLEOD  3   TRIAL. 


119 


osel     If  yea 
in  Buffalo'. 

ly  person  in 

IS  destroyed, 

from  Buffalo 

yea  at  about 

it  1  and  who 

jbstance  1 

r  have  heard 

line  was  de- 

lown  to  Navy 

look  out  for 

e  of  the  day, 

:  what  did  he 

conversation, 
n  on  the  sub- 
,  or  did  you 
iny  other  per- 
what  hour  or 
and  what  was 
;1     State  the 

>efore  the  Car- 
I,  or  might  be 
port  1 

er,  either  di- 
be  cut  out  or 
d  from  him  1 
the  burning  of 

or  the  expedi- 
pewa  village  1 
re  Chippewa'. 

boats  1  How 
names  1]  Do 
f  the  name  of 
pewa  in  1837 1 
he  expedition  1 
nterrogatories 
command  of 
lie  or  private, 
re  or  the  sub- 
ermission  or  a 
where  was  it 
y  1     Ip.  whose 

on  land,  at  or 
you  attacked 


or  fired  upon  from  the  shore,  or  the  warehouse,  or  from  any  quarter  1 
Was  Lieutenant  Elnisley  or  any  other  person  sent  on  shore  with 
sixteen,  or  any  other  number  of  men  to  protect  the  expedition  while 
cutting  loose  the  Caroline  !  If  Lieutenant  Elmsley  or  any  other 
person  went  on  shore,  did  he  meet  any  opposition,  or  discover  any 
armed  men  ? 

Lastly — Do  you  know  of  any  other  matter  or  thing,  or  have  yoii 
heard  or  can  you  say  any  thing  touciiing  the  matters  in  question  in 
this  cause  that  may  tend  to  the  benefit  and  advantage  of  the  said  peo- 
ple, besides  what  you  have  been  interrogated  unto  1.  Declare  the 
same  fully  and  at  lai'ge  as  if  you  had  been  particularly  interrogated 
thereto. 

The  foregoing  cross-interrogatories  settled  and  allowed  this  elev- 
enth day  of  September,  1841,  except  the  part  of  fifteenth  surrounded 
with  black  lines,  and  in  the  words  following,  ["  please  name  all  whom 
you  saw  and  recognized,"]  and  the  words  in  the  sixteenth  surrounded 
as  aforesaid  as  follows,  ["name  them  and"]  and  the  words  in  the  thir- 
tieth surrounded  as  aforesaid  as  follows,  ["  and  who  were  wounded,"] 
and  the  words  in  the  fifty-second  and  surrounded  as  aforesaid  as  fol- 
lows, ["what  were  their  names  1"]  All  those  thus  excepted  are  dis- 
allowed. ELL\S  RANSOM,  Jr. 

First  Judge  of  the  jYiagara  County  Courts  and 

Counsellor  of  the  Supreme  Court. 

Additional  Interrogatories,  to  be  administered  by  %vay  of  cross-examina- 
tion, to  Sir  Allan  J\\  McJVab. 

First  cross-interrogatory : — If  to  the  8th  direct  interrogatory 
addressed  to  you,  you  reply,  that  you  advised  Captain  Drew  to 
destroy  the  Caroline,  please  state  whether  your  order  was  written  or 
verbal  1  whether  at  the  time  you  knew  the  Caroline  was  lying  within 
the  territory  of  the  United  States  1  If  the  order  was  verbal,  state 
the  language  of  it  1  If  j'^ou  cannot  recollect  the  words  used,  state  the 
substance  as  near  as  you  can  recollect  '!  On  what  day  and  hour  was 
it  given  1  At  what  place  was  it  given  1  Did  it  direct  him  to  invade 
the  territory  of  the  tfnited  States  1  Please  state  also,  whether  you 
had  any  order,  instructions,  or  authority,  to  invade  the  territory  of 
the  United  States  %  If  so,  were  such  instructions  written  or  verbal  1 
If  verbal,  state  as  near  as  you  can  recollect  the  language  and  purport 
thereof.     State  also  from  whom  you  received  them,  and  where  1 

Second — Did  the  steamboat  Caroline  come  down  to  Navy  Island 
or  Schlosser,  more  than  once  1  Did  you  receive  information  of  her 
intended  coming  before  she  arrived  1  From  w'hom  1  Did  you  receive 
any  such  information  from  Alexander  McLeod,  when  and  where  1 
Did  you  receive  any  information  of  her  state  and  condition  after  she 
arrived  at  Schlosser  1  From  whom  1  Was  any  information  received 
from  any  person  on  the  boat,  or  who  had  been  on,  or  near  the  boat, 
after  her  arrival  at  Schlosser  1 

Third — If  to  the  16th  direct  interrogatory  addressed  to  you,  you 
answer,  that  you  did  furnish  the  Lieutenant  Governor  of  Upper 
Canada  with  the  names  of  the  officers  and  men  who  were  in  the 
expedition  to  destroy  the  Caroline,  state  whether  the  names  were 


r 


120 


GOULD'S   HEPORTER. 


■  contained  in  a  written  list,  or  accompanied  with  any  written  com- 
munication referring  to  such  list,  and  explanatory  thereof — if  yea 
annex  such  [^fist  and]  accompanying  communication  to  your  answer. 
And  state  from  whom  you  received  the  names — how  many  names 
there  were  in  the  list,  and  answer  whether  from  your  own  personal 
knowledge  that  list  contained  the  true  names  of  all  the  persons 
who  embarked  in  the  expedition  to  destroy  the  Caroline  1  Did 
Captain  Usher's  name  appear  in  that  list  1 

Fourth — How  many  boats  did  you  see  start  on  the  expedition  to 
destroy  the  Caroline  1  From  what  place  or  wharf  did  they  start  1 
And  where  did  you  stand  at  the  time  1 

Fifth — Did  McLeod  at  any  time  inform  you  that  the  Caroline 
was  reported  to  have  left  Buffalo  on  her  way  to  Navy  Island  1  And 
did  he  solicit  permission  to  prepare  an  expedition  to  destroy  her  % 
Or  did  he  suggest  that  such  an  expedition  should  be  fitted  out  1  Or  did 
you  say  anything  to  him,  or  he  to  you,  on  the  subject  of  such  an  expe- 
dition, the  night  before  the  Caroline  came  down,  or  at  any  other  time  1 

The  foregoing  additional  interrogatories  settled  and  allowed, 
except  the  part  of  the  third  surrounded  with  Mack  lines  and  in  the 
words  [list  and].     These  words  disallowed.     September  11th,  1841. 

ELIAS  RANSOM,  Jr. 
First  Judge  of  Miagara  County  Court,  and 

Counsellor  of  the  Supreme  Court. 

Additional  Interrogatories,  to  be  administered  by  way  of  Cross-examino' 

tion  to  Niel  McGregor. 

First  cross-interrogatory. — If  you  answer  the  17th  direct  inter- 
rogatory addressed  to  you,  that  you  did  learn  the  names  of  all  the 
Kersons  engaged  in  the  expedition,  and  that  that  of  Alexander 
IcLeod  was  not  among  the  number,  state  how  you  learned  the 
names.  Was  it  by  a  list  of  their  names  in  writing  %  If  so,  attach  that 
written  list  which  you  saw  to  yotir  answer,  and  state  by  whom  that  list 
was  made. 

Do  you  know  of  your  own  knowledge  that  that  list  is  a  true  and 
faithful  list  of  all  the  persons  who  embarked  or  were  engaged  in  the 
expedition  against  the  Caroline  1 

Second — If  to  the  9th  direct  interrogatory  addressed  to  you,  you 
answer  that  a  certain  number  of  men  selected  to  go  on  the  expedition 
to  destroy  the  Caroline  did  meet  together  in  Chippewa,  state  how 
these  men  were  selected.  What  was  their  number,  and  occupation  1 
At  what  house  or  place  did  they  meet  1  At  what  hour  of  the  day, 
and  on  what  day  ? 

Third — If  to  the  12th  direct  interrogatory  addressed  to  you,  you 
answer  that  the  men  you  spoke  of  did  assemble  on  the  beach,  state 
how  many  assembled  there.  And  whether  there  were  any  others, 
and  how  many  persons  were  there  or  near  there  1  And  at  what 
hour  they  assembled  there  1  And  at  what  point  or  place  on  the 
beach  they  did  assemble  1  And  did  they  all  embark  together  1  How 
many  boats  did  they  occupy  1     And  at  what  place  did  they  embark  1 

Fourth — Did  McLeod  ever  express  to  you  an  unwillingness  to  be 
known  to  be  in  the  expedition  ^  Or  that  if  it  were  known,  it  would  be 


Mu 


mritten  com- 
eof— if  yea 
our  answer, 
many  names 
wn  personal 
the  persons 
>line  1      Did 

sxpedition  to 
.  they  start  1 

the  Caroline 
iland  1  And 
iestroy  her  % 
out  1  Or  did 
such  an  expe- 
jT  other  time  1 
ind  allowed, 
js  and  in  the 
T  nth,  1841. 
r. 

t,  and 
erne  Court. 

'ross-examina- 

direct  inter- 
ies  of  all  the 
f  Alexander 
learned  the 
so,  attach  that 
lom  that  list 

is  a  true  and 
igaged  in  the 

to  you,  you 
le  expedition 
a,  state  how 
occupation  1 
r  of  the  day, 

to  you,  you 
beach,  state 
any  others, 
And  at  what 
jlace  on  the 
ether  1  How 
ley  embark  1 
ngness  to  be 
,  it  would  be 


Mcleod's  trial. 


121 


injurious  to  him  1  Or  did  you  ever  hear  that  the  Sheriff  threatened 
to  remove  him  for  being  engaged  in  the  destruction  of  the  Caroline  ? 
The  foregoing  additional  interrogatories,  settled  and  allowed  this 
11th  day  of  September,  1841,  except  the  word  [names]  surrounded 
by  black  lines  ;  this  is  disallowed. 

ELIAS  RANSOM,  Jr. 
First  Judge  of  the  Jfiagara  County  Court,  and 

Counsellor  of  the  Supreme  Court. 

Deposition  of  Sir  Allan  N.  McNab. 

Answers  to  interrogatories  administered  to  Sir  Allan  N.  McNab,  a 
witness  produced,  sworn  and  examined  before  James  E.  Small,  and 
James  Harvey  Price,  Esquires,  Commissioners  on  the  part  and  behalf 
of  Alexander  McLeod,  in  a  suit  now  depending  in  the  Supreme  Court 
of  Judicature  of  the  people  of  the  State  of  New  York,  before  the 
Justices  thereof,  at  the  suit  of  the  said  people  for  murder,  under  and 
by  virtue  of  a  Commission  issuing  out  of  the  said  Supreme  Court  and 
under  the  seal  thereof  pursuant  to  a  rule  of  the  said  Court  made  on 
the  twentieth  day  of  July  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  forty-one.  Joseph  Center,  being  present  and  approving 
for  the  People  of  the  State  of  New  York,  and  Hiram  Gardner  for  said 
defendant,  Alexander  McLeod. 

To  the  1st  interrogatory.  I  am  a  Barrister.  I  reside  at  Dundurn 
in  the  Gore  District,  in  the  province  of  Canada,  about  45  miles  from 
the  town  of  Niagara. 

To  the  2d  interrogatory.  I  know  a  body  of  militia  was  assembled 
at  Chippewa  in  the  month  of  December,  1837,  and  January,  1838, 
to  the  number  of  between  two  and  three  thousand  to  repel  an  expect- 
ed invasion  from  rebels  and  American  brigands  assembled  on  Navy 
Island  and  on  the  American  shore  near  Schlosser.  (They  were  or- 
dered out  by  the  Lieutenant  Governor  of  Upper  Canada,  Sir  Francis 
Bond  Head,  for  the  purpose  aforesaid.  I  was  the  officer  in  actual 
command  of  the  force  then  and  there  assembled.) 

To  the  3d  interrogatory.  Sir  Francis  Bond  Head  was  at  that  time 
Lieutenant  Governor  of  Upper  Canada. 

To  the  4th  interrogatory.  Sir  Francis  Bond  Head  was  at  Chip- 
pewa  more  than  once  during  the  months  mentioned  in  t"he  foregoing 
interrogatories.  The  force  assembled  there  by  his  direction.  I  as- 
sumed the  command  of  the  forces  there  assembled  by  his  order,  di- 
rected to  me  as  Colonel  of  the  3d  Regiment  of  Gore  Militia. 

To  the  5th  interrogatory.  The  Governor  General  of  Her  Britannic 
Majesty's  Provinces  of  Upper  and  Lower  Canada,  was  not  at  Chip- 
pewa at  the  time  mentioned  in  the  foregoing  interrogatory. 

To  the  6th  interrogatory.  I  do  remember  the  last  time  when  the 
steamboat  Caroline  came  down  previous  to  her  destruction.  From 
the  information  I  received,  I  had  every  reason  to  believe  that  she  came 
down  for  the  express  purpose  of  assisting  the  rebels  and  brigands  on 
Navy  Island  with  arms,  men,  ammunition,  provisions,  stores,  &c.,  to 
ascertain  thi"  fact  I  sent  two  officers  with  instructions  to  watch  the 
movements  of  the  boat,  to  note  the  same  and  report  to  me.     These 

16 


•  ■  r 


'Ml/' 


fl 


i.' "i! 


tr  "N 


,.»t"iii" 


122 


GOULD  S   REPORTER. 


gentlemen  reported  they  saw  her  land  a  cannon,  (a  six  or  nine  pound- 
er) several  men  armed  and  equipped  as  soldiers,  and  that  she  had 
dropped  her  anchor  under  the  east  side  of  Navy  Island — upon  the  in- 
formation I  had  previously  received  from  highly  respectable  persons 
ill  Buffalo,  together  with  the  report  of  those  gentlemen,  I  determin- 
ed to  destroy  her  that  night.  I  entrusted  the  command  of  the  ex- 
pedition for  the  purpose  aforesaid  to  Captain  A.  Drew,  Royal  Navy. 
Seven  boats  were  equipped  and  left  the  Canadian  shore.  I  do  not 
recollect  the  number  of  men  in  each  boat.  Captain  Drew  held  the 
rank  of  Commander  in  her  Majesty's  Royal  Navy. 

To  the  7th  interrogatory.  I  ordered  the  expedition  and  first  com- 
municated it  to  Captain  Andrew  Drew  on  the  beach  where  the  men 
embarked,  a  short  time  previous  to  their  embarkation. 

To  the  8th  interrogatory.  Captain  Drew  was  ordered  to  take  and 
destroy  the  Caroline  wherever  he  could  find  her.  I  gave  the  order 
as  officer  in  command  of  the  force  assembled,  for  the  purpose  before 
stated. 

To  the  9th  interrogatory.  They  embarked  at  the  mouth  of-  the 
Chippewa  river.  I  was  there  when  they  embarked,  and  when^the 
boats  shoved  off'.  I  had  been  there  about  one  quarter  of  an  hour.  I 
noticed  most  of  the  persons  going  into  the  boats.  I  stood  within 
ten  or  twelve  feet  of  most  of  the  boats  as  the  men  went  on  board, 
and  while  they  were  preparing  I  was  walking  about  among  them, 
which  afl!brded  me  the  means  of  knowing  who  embarked. 

To  the  10th  interrogatory.  I  know  Alexander  McLeod,  late  Deputy 
Sheriff"  of  the  Niagara  District  in  the  late  province  of  Upper  Canada. 
I  have  known  him  for  about  five  or  six  years.  My  acquaintance  with 
him  was  of  a  professional  nature.  I  did  not  meet  him  frequently, 
the  nature  of  my  intercourse  with  him  was  professional. 

To  the  1 1th  interrogatory.  I  think  I  saw  and  spoke  to  Alexander 
McLeod,  two  or  three  times  while  I  was  in  command  of  the  forces 
at  Chippewa.  I  do  not  recollect  where  it  was  I  saw  Alexander  Mc- 
Leod,or  the  nature  of  his  business.  I  think  I  saw  Alexander  Mc- 
Leod on  the  day  previous  to  the  destruction  of  the  Caroline,  and  in 
what  place  and  on  what  business  I  do  not  recollect. 

To  the  12th  interrogatory.  I  did  not  see  Alexander  McLeod 
when  the  boats  shoved  off"  to  destroy  the  Caroline,  he  was  not  in  my 
presence  that  evening. 

To  the  13th  interrogatory.  I  think  the  boats  returned  about  two 
hours  after  they  left  the  Canada  shore.  I  do  not  recollect  the  hour, 
the  boats  seemed  to  go  in  the  direction  of  Navy  Island  when  they 
left. 

To  the  14th  interrogatory.  I  was  on  the  shore  when  the  boats 
returned,  and  was  near  some  of  the  boats  when  the  men  landed.  I 
saw  the  faces  of  several  of  the  men  who  landed,  perhaps  one  half  of 
the  whole.  I  did  not  see  Alexander  McLeod,  I  do  not  know  where 
he  was,  he  was  not  in  my  presence. 

To  the  15th  interrogatory.  I  saw  the  Caroline  on  fire  going  down 
the  river  after  the  boats  had  left  the  Canada  shore.  I  heard  two  or 
three  shots  in  the  direction  of  Schlosser. 

To  the  16  th  interrogatory.    /  think  I  made  a  return  to  the  Lieu- 


nine  pound- 
timt  she  had 
upon  the  in- 
able  persons 
,  I  detevmin- 
d  of  the  ex- 
Royal  Navy, 
e.  I  do  not 
ew  held  the 

tid  first  com- 
lere  the  men 

I  to  take  and 
ve  the  order 
rpose  before 

louth  of-  the 
id  whenilthe 
'  an  hour.  I 
stood  within 
nt  on  board, 
mong  them, 
I. 

,  late  Deputy 
pper  Canada, 
lintance  with 
I  frequently, 

o  Alexander 
of  the  forces 
xander  Mc- 
exander  Mc- 
oline,  and  in 

er  McLeod 
as  not  in  my 

d  about  two 
ct  the  hour, 
when  they 


n 


n  the  boats 
landed.  I 
one  half  of 
enow  where 


going  down 
;ard  two  or 

to  the  Lieu- 


MCLEOD  S   TRIAL. 


1-23 


tenant  Governor  of  Upper  Canada  of  the  officers  and  men  wlio  des- 
troyed the  Caroline.  1  am  sure  the  name  of  Alexander  McLcod 
was  not  among  them,  because  he  was  not  one  of  the  party,  llierefore 
)»is  name  could  not  have  been  in  any  return  made  by  me. 

To  the  17th  interrogatory.  I  was  not  in  command  when  the  force 
took  possession  of  Navy  Island.  Captain  Drew  is  now  at  Woodstock, 
in  the  Brock  District  of  this  province. 

Lastly :  I  know  of  no  other  matter  or  thing,  and  can  say  nothing 
that  can  tend  to  the  benefit  or  advantage  of  the  said  Alexander  Mc- 
Leod besides  what  1  have  been  interrogated  upon. 

Signed,      ALLAN  N.  MAC  NAB. 
Taken  and  sworn  before  us  this  thirteenth  day  of  September,  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and  forty-one,  at 

the  town  of  Kingston,  in  Canada. 

Jas.  E.  Small, 
J.  H.  Price, 


Commissioners. 


It  being  now  6  o'clock,  the  Court  adjourned  for  one  hour. 

The  Court  reassembled  at  7  o'clock,  and  the  answers  of  Col.  Mc- 
Nab  to  the  cross  interrogatories  were  proceeded  with. 

Answers  to  interrogatories  administered  by  way  of  cross  examina- 
tion to  Sir  Allan  McNab,  a  witness  produced,  sworn  and  examined 
on  the  part  and  behalf  of  Alexander  McLeod,  in  a  suit  now  depending 
in  the  Supreme  Court  of  Judicature  of  the  people  of  the  state  of  New 
York,  before  the  Justices  thereof  at  the  suit  of  the  said  people  for 
murder,  before  James  E.  Small  and  James  Harvey  Price,  Esquires,  of 
Toronto,  in  the  Province  of  Canada,  under  and  by  virtue  of  a  com- 
mission issuing  out  of  the  said  Supreme  Court  under  the  seal  thereof, 
pursuant  to  a  rule  of  the  said  Court  made  on  the  twentieth  day  of 
July,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and  forty- 
one. 

To  the  1st  cross  interrogatory,  he  says :  I  reside  at  Dundurn,  in 
the  Gore  District  and  Province  of  Canada.  I  have  resided  in  that 
District  for  about  sixteen  years.  I  am  a  native  of  Canada,  and  have 
always  resided  there.  I  am  forty-one  years  of  age  and  am  a  Barris- 
ter at  Law. 

To  the  2d  cross-interrogatory,  he  says :  I  was  commanding  offi- 
cer of  the  whole  force  at  Chippewa,  naval  and  military ;  was  not 
attached  to  any  vessel. 

To  the  3d  cross-interrogatory,  he  says :  I  saw  Alexander  McLeod 
once  during  the  week  preceding  the  destruction  of  the  Caroline.  I 
do  not  recollect  the  particular  day,  the  hour  of  the  day,  or  the  place 
at  Chippewa,  but  I  think  it  was  the  day  before  the  destruction. 

To  the  4th  cross-interrogatory,  he  says  :  I  have  no  recollection  of 
conversing  with  Alexander  McLeod,  of  hearing  him  converse,  or  of 
speaking  to  him  on  the  destruction  of  the  Caroline. 

To  the  5th  cross-interrogatory,  he  says :  I  do  not  recollect  at  any 
time  McLeod  informing  me  that  he  had  been  at  Buffalo  and  seen  the 
Caroline,  that  she  was  preparing  to  come  to  Navy  Island,  nor  did  he 
describe  to  me  her  size,  her  equipments  or  character,  nor  do  I  recol- 


mm 


<■■ 


m 


)!■  ik.. 


J1 


Jil 


m 


Gould's  reporter. 


lect  his  telling  me  any  thing  about  her,  but  I  do  recollect  that  the 
information  which  induced  me  to  order  the  destruction  of  the  Caro- 
line was  not  received  from  Alexander  McLeod. 

To  the  6th  cross-interrogatory,  he  says :  I  did  not  at  any  time  be- 
fore or  after  the  burning  of  the  Caroline,  during  the  day  or  night,  go 
with  McLeod  in  a  large  boat  or  a  small  boat  round  Navy  Island. 

To  the  7th  cross-interrogatory,  he  says :  I  have  no  knowledge  or 
recollection  respecting  any  of  the  matters  contained  in  the  7th  cross- 
interrogatory. 

To  the  8th  cross-interrogatory,  he  says :  I  never  did  to  my  recol- 
lection. 

To  the  9th  cross-interrogatory,  he  says :  After  I  heard  that  she 
was  coming  down  to  assist  the  rebels,  and  after  the  officers  appoint- 
ed by  me  to  watch  her  movements  had  reported  to  me,  I  made  up 
my  mind  to  have  her  destroyed  ;  this  was  on  the  day  of  her  destruc- 
tion. I  did  not  communicate  my  intention  to  Alexander  McLeod, 
or  in  his  presence,  nor  do  I  think  that  he  could  have  known  any  thing 
about  it. 

To  the  10th  cross-interrogatory,  he  says  u  I  did  not  see  the  boat 
at  Schlosser,  it  may  have  been  reported  to  me  that  she  had  returned 
to  the  American  shore,  but  I  have  no  recollection  of  the  circumstance, 
McLeod  did  not  so  inform  me.  I  commenced  preparing  for  the  at- 
tack immediately  after  the  report  was  made  to  me  of  her  having 
landed  the  men  and  cannon  at  NaVy  Island.  This  was  on  the  day 
of  her  destruction.  I  was  on  the  shore  when  the  boats  returned  and 
went  from  thence  to  my  own  quarters. 

To  the  1 1th  cross-interrogatory,  he  says :  I  do  not  recollect  being 
at  Davis's  tavern  on  the  day  after  the  burning  of  the  Caroline,  nor 
did  I  see  or  have  any  communication  with  Alexander  McLeod  on  that 
day,  or  any  other  day  after  the  burning  of  the  Caroline,  on  the  sub- 
ject of  the  destruction  of  that  boat. 

To  the  12th  cross-interrogatory,  he  says :  I  was  not  present  at  the 
burning  of  the  steamboat  Caroline  at  Schlosser.  I  ordered  the  ex- 
pedition for  that  purpose.  I  was  present  at  the  embarkation  of  the 
expedition  from  Chippewa,  and  saw  it  embark ;  there  were  on  the 
shore  at  or  near  the  place  where  the  embarkation  took  place  about 
from  sixty  to  one  hundred  men. 

To  the  13th  cross-interrogatory,  he  says :  I  think  there  were 
about  forty  persons  embarked  in  the  expedition.  I  think  I  knew 
them'all.  I  was  not  one  of  them.  I  have  before  stated'  that  I  order- 
ed her  destruction. 

To  the  14th  cross-interrogatory,  he  says :  The  boats  used  are  com- 
monly named  ship's  cutters  as  I  understand.  I  think  there  were 
seven  or  eight  men  in  each  boat. 

The  boats  were  nearly  of  the  same  size  and  description,  they  wer  - 
seven  in  number,  but  as  I  had  not  the  personal  direction  of  the  boats 
I  cannot  speak  positively. 

To  the  15th  cross-interrogatory  he  says :  I  think  I  know  all  who 
embarked  on  the  expedition.  I  saw  the  faces  of  most  of  them,  and 
recognized  those  whom  I  saw. 

To  the  16th  cross-interrogatory  he  says :  I  was  not  in  any  boat, 


MCLEOD  S   TRIAL. 


125 


t  that  the 
the  Caro- 

y  time  be- 
•  night,  go 
land. 

wledge  or 
7th  cross- 


my 


recol- 


i  that  she 
rs  appoint- 
I  made  up 
er  destruc- 
r  McLeod, 
n  any  thing 

•e  the  boat 
ad  returned 
cumstance, 

for  the  at- 
her  having 

on  the  day 
^turned  and 

oUect  being 
iroline,  nor 
eod  on  that 
Ion  the  sub- 

'esent  at  the 

Ired  the  ex- 

ition  of  the 

ere  on  the 

Iplace  about 

there  were 
link  I  knew 

lat  I  order- 
led  are  com- 

there  were 

[,  they  wer 
)f  the  boats 

)w  all  who 
them,  and 

any  boat, 


as  I  have  before  stated.     Captain  Andrew  Drew  commanded  the  ex- 
pedition, as  I  have  before  stated. 

To  the  17th  cross-interrotratory  ho  says :  I  was  not  in  any  boat. 

To  the  18th  cross-interrogatory  he  says :  I  know  nothing  of  the 
matters  inquired  after  by  this  cross-interrogatory  except  from  infor- 
mation from  other  persons. 

To  the  19th  cross-interrogatory  he  says :  I  have  no  knowledge 
that  there  was  any  person  of  the  name  of  McLeod  in  the  expedition. 
If  there  had  been  a  person  of  that  name  I  think  I  should  have 
known  it. 

To  the  20th  cross-interrogatory  he  says :  There  was  no  wharf  or  pier 
where  the  expedition  embarked  at  the  mouth  of  the  Chippewa  River. 

To  the  2l8t  cross-interrogatory  he  says :  The  boats  in  which  the 
expedition  embarked  all  lay  at  the  same  landing  place,  near  each 
other,  and  started  about  the  same  time. 

To  the  22fl  cross-interrogatory  he  says :  The  boats  did  not  all  re- 
turn at  the  same  time.  Five  arrived  at  about  the  same  time,  two  at 
a  different  time,  but  I  do  not  recollect  whether  they  were  before  or 
after  the  others.  They  disembarked  nearly  at  the  same  place  as 
from  where  they  started.  I  cannot  say  that  I  saw  and  recognized 
all  the  persons  that  embarked. 

To  the  23rd  cross-interrogatory  he  says :  I  do  not  think  that  any 
of  the  persons  composing  the  expedition  belonged  to  the  regular 
army.  Some  of  them  belonged  to  the  Royal  Navy.  Others  were 
militiamen.  The  force  under  my  command  volunteered  their  ser- 
vices on  being  called  upon  by  the  Lieut.  Governor  of  the  Province, 
from  which  force  the  expedition  was  composed  of  men  selected  by 
Captain  Andrew  Drew,  under  my  orders.  I  think  the  men  compos- 
ing the  expedition  marched  to  the  boats  in  a  body,  except  such  as 
took  the  boats  down  the  river  to  the  place  of  embarkation. 

To  the  24th  cross-interrogatory  he  says :  The  force  composing 
the  expedition  was  under  the  immediate  orders  of  Csiptain  Drew  who 
superintended  the  embarkation.  I  have  already  stated  they  came  to 
that  point  in  a  body,  and  on  their  return  they  marched  to  their 
quarters  in  a  body  without  any  particular  military  display. 

To  the  25th  cross-interrogatory  he  says :  The  persons  composing 
the  expedition  were  dressed  in  their  usual  clothing.  The  militia 
were  not  at  that  time  provided  with  uniform.  I  can  give  no  more 
definite  answer  to  this  cross-interrogatory. 

To  the  26th  cross-interrogatory  he  says :  The  party  were  armed 
with  pistols  and  cutlasses.  The  pistols  belonged  to  some  Provincial 
Dragoons  then  on  service  under  my  command.  I  think  the  cutlasses 
were  procured  from  the  Queen's  stores. 

To  the  27th  cross-interrogatory  he  says :  After  the  expedition  re- 
turned, the  men  composing  it  continued  on  duty  until  the  force  un- 
der my  command  was  disbanded  about  the  end  of  January  or  begin- 
ning of  February  to  the  best  of  my  recollection. 

To  the  28th  cross-interrogatory  he  says  :  It  was  about  midnight 
when  the  force  disembarked.  It  was  not  a  moonlight  night.  I  think 
it  was  cloudy.  I  do  not  recollect  whether  the  moon  was  up  or  not. 
The  force  after  their  return  went  to  their  respective  quarters.    I  do 


i   ,  ■■■1 

'  '^  em. 


'■{.  i\ 


"<i 


iim 


:  ■  It. 


^^■rM 


<  I 


126 


GOULD  S   REPORTER. 


Ji,  ?, 


not  know  whether  they  were  together  at  sunrise  or  not.  They  were 
quartered  in  different  houses  in  and  about  the  villaere  of  Cliippewa. 
I  have  seen  the  men  engaged  in  this  expedition  since,  on  parade, 
some  of  them  armed  and  equipped  as  militiamen.  I  cannot  give 
their  names  or  the  period  when  I  saw  them.  Some  of  them  were 
subsequently  ordered  on  board  of  schooners  lying  in  the  river.  I 
cannot  say  that  I  have  seen  the  same  body  of  men  together  armed 
and  equipped  as  they  were  when  on  that  expedition. 

To  the  29th  cross-interrogatory  he  stlys:  The  expedition  embark- 
ed about  ten  o'clock,  P.  M. 

To  the  30th  cross-interrogatory  he  says  :  There  were  some  of  the 
.nssailing  party  wounded  in  the  attack,  Lieutenant  McCormack  se- 
verely. There  was  no  one  killed  as  reported  to  me  as  commanding 
officer. 

To  the  31st  cross- interrogatory  he  says:  I  was  not  there,  there- 
fore know  nothing  of  the  matters  inquired  after  by  this  cross-inter- 
rogatory except  from  report. 

To  the  32nd  cross-interrogatory  he  says :  The  same  answer  ap- 
plies to  this  as  to  the  foregoing. 

To  the  33d  cross-interrogatory  he  says :  The  same  answer  to  this 
.1,8  to  the  thirty-lirst. 

To  the  34ith  cross-interrogatory  he  says :  I  have  reason  to  believe 
there  was  no  one  on  board  of  the  Caroline  when  she  was  cut  loose 
and  sent  over  the  Falls. 

To  the  35th  cross-interrogatory  he  says :  I  was  not  there. 

To  the  36th  cross-interrogatory  he  says :  I  was  not  there,  and  I 
have  no  knowledge  of  any  thing  having  been  taken  from  the  Caroline. 

To  the  37th  cross-interrogatory  he  says:  I  heard  that  she  was 
coming  down  a  few  days  before  her  arrival.  My  information  was 
derived  from  some  gentleman  in  Buflalo  or  Black  Rock.  From  the 
manner  in  which  the  information  was  given  to  me  I  do  not  feel  at 
liberty  to  give  their  names.  I  did  not  obtain  the  information  from 
Alexander  McLeod. 

To  the  38th  cross-interrogatory  he  says :  I  have  seen  a  person  of 
the  name  of  Sylvanus  S.  Rigb;;^.  I  first  saw  him  at  Chippewa.  He 
was  not  engaged  in  her  Britannic  Majesty's  service  in  December, 
1837,  to  my  knowledge.  I  cannot  recollect  the  exact  time  when  I 
saw  him  first.     It  was  during  the  time  I  was  in  command  there. 

To  the  39th  cross-interrogatory  he  says :  To  the  best  of  my  re- 
collection I  neither  saw  nor  knew  him  previously  to  the  destruction 
of  the  Caroline. 

To  the  40th  cross-interrogatory  he  says  :  Yes. 

To  the  -ilst  cross-interrogatory  he  says :  I  have  no  knowledge  of 
his  being  on  board  the  Caroline  when  she  was  attacked,  nor  did  he 
ever  inform  me  that  he  was. 

To  the  42nd  cross-interrogatory  he  says  :  Not  to  my  knowledge, 
nor  did  he  so  inform  me.  I  do  not  know  where  the  said  Rigby 
now  is. 

To  the  43rd  cross-interrogatory  he  says :  I  do  not  recollect  see- 
ing him  before  the  attack  on  the  Caroline,  nor  do  I  know  where  he 
went. 


■m: 


By  were 
ippewfi. 
parade, 
lOt  give 
im  were 
•iver.  I 
r  armed 

embark- 

fie  of  the 
mack  se- 
manding 

re,  there- 
oss-inter- 

iswer  ap- 

er  to  this 

to  believe 
cut  loose 

•e. 

ere,  and  I 
I  Caroline, 
t  she  was 
ation  was 
From  the 
ot  feel  at 
tion  from 

person  of 

|ewa.    He 

)ecember, 

le  when  I 

Ithere. 

of  my  re- 

jstruction 


pledge  of 
lor  did  he 

lowledge, 
Lid  Rigby 

lUect  see- 
I  where  he 


Mcleod's  trial. 


127 


To  the  44th  cross-interrogatory  he  says:  I  do  not  know  tlmt 
Alexander  McLcod  went  to  liiiinilo  in  the  niontli  of  December,  1887, 
nor  do  I  recollect  hejiriiig  iiim  say  thiit  lie  did  so,  to  ascortuin 
whether  any  steamboat  was  to  be  taken  down  from  thence  to  .Schloss- 
cr,  Navy  Island  or  nonr  there  or  for  any  other  purpose. 

To  the  45th  cross-intorrogatory  he  says :  I  have  no  recollection  of 
Alexander  McLeod  telling  me  or  any  person  in  my  presence  the  day 
or  night  before  the  Caroline  was  destroyed,  or  at  any  other  time  be- 
fore, that  she  was  coming  down  from  Builulu  to  Navy  Island  or  any 
other  place  in  that  vicinity. 

To  the  46th  cross-interrogatory  he  says:  I  have  no  knowledge  of 
Alexander  McLeod  remaining  at  Chippewa  the  day  before  the  Caro- 
line was  destroyed,  to  keep  a  look-out  to  see  when  she  came  down 
to  Navy  Island  or  Schlosser,  nor  do  I  recollect  having  heard  him  say 
that  he  did  so. 

To  the  47th  cross-interrogatory  he  says  :  I  have  no  recollection  or 
knowledge  of  the  matters  or  any  of  them  inquired  after  in  this  cross 
interrogatory. 

To  the  48th  cross-interrogatory  he  says  :  No. 

To  the  49th  cross-interrogatory  he  says  :  No. 

To  the  50th  cross-interrogatory  he  says :  No. 

To  the  51st  cross-interrogatory  he  says:  Seven  boats  were  first 
engaged  in  the  expedition.  None  started  from  the  Chippewa  village. 
All  started  from  the  Chippewa  River.  None  got  aground  at  Buck- 
horn  Island  to  my  knowledge. 

To  the  52nd  cross-interrogatory  he  says :  I  am  not  aware  that 
any  person  or  persons  was  or  were  employed  to  pilot  the  boats.  I 
have  heard  of  a  person  living  on  the  Niagara  frontier  of  the  name  of 
Wiscoon,  but  I  do  not  recollect  of  ever  having  seen  him.  I  do  not 
think  there  was  any  one  of  that  name  on  the  expedition. 

To  the  53rd  cross-interrogatory  he  says  :  The  12th  and  13th  direct 
interrogatories  to  which  cross  interrogatory  refers  have  not  been  put 
to  me.  I  was  the  person  who  gave  the  orders  to  Captain  Drew 
which  were  personal,  verbal  and  private.  My  orders  were  to  take 
and  destroy  the  Caroline.  They  were  given  on  the  beach  a  few 
minutes  previous  to  the  expedition  putting  off  from  the  shore. 

To  the  54th  cross-interrogatory  he  says :  I  know  nothing  of  my 
own  knowledge  of  the  masters  inquired  after  in  this  cross-interroga- 
tory. 

To  the  last  cross-interrogatory  he  says  :  I  do  not  know  any  other 
matter  or  thing,  nor  have  I  heard,  nor  can  I  say  anything  touching  the 
matters  in  question  in  this  cause  that  may  tend  to  the  benefit  or  ad- 
vantage of  the  said  people,  besides  Avhat  I  have  been  interrogated 
unto. 

Signed        ALLAN  N.  MACNAB. 

Taken  and  sworn  before  us  this  thirtieth  day  of  September,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  forty-one 
at  the  town  of  Kingston  in  Canada. 

Jas.  E.  Small, 
J.  H.  Price, 


Commissioners. 


\>w 


ti«K  ',',1  I 


128 


GOULD  S   REPORTER. 


*i  j 


■{*• 


says  :  My  order  to 
The  substance  of 


To  the  1st  ndditionnl  cross-interrogatory  he 
Captain  Drew  was  verbal  as  I  have  before  stated, 
wbi«!h  was  to  take  and  destroy  the  Caroline,  as  nearly  as  I  can  re- 
collect. The  order  was  given  on  the  evening  of  the  day  on  which 
she  was  destroyed,  on  the  beach  near  to  the  place  where  the  boats 
put  off.  I  had  no  orders  to  invade  the  territory  of  the  United  Statds. 
in  my  orders  to  Captain  Drew  nothing  was  said  about  invading  the 
territory  of  the  United  States,  but  such  was  their  nature  that  Cap- 
tain Drew  might  feel  himself  justified  in  destroying  the  boat  where 
ever  he  might  find  her. 

To  the  2d  additional  cross-interrogatory  he  says:  I  do  not  recol- 
lect her  coming  down  more  than  once.  I  did  receive  information 
of  her  intended  coming  before  she  arrived.  The  peculiar  circum- 
stances under  which  I  received  the  information  makes  me  feel  that  I 
cannot  with  any  propriety  disclose  the  names  of  those  who  commu- 
nicated it  to  me. — The  information,  however,  was  not  received  from 
Alexander  McLeod.  I  received  no  information  of  the  state  or  con- 
dition of  the  Caroline  after  she  arrived  at  Schlosser. 

To  the  3d  additional  cross-interrogatory  he  says  :  I  am  under  tli«^ 
impression,  although  I  will  not  be  positive,  that  I  did  furnish  the 
Lieutenant  Governor  of  Upper  Canada  with  the  names  of  the  officers 
and  men  who  were  in  the  expedition  to  destroy  the  Caroline.  If  I 
did  so  it  must  have  been  a  written  list.  I  do  not  recollect  whether 
it  was  accompanied  with  a  written  communication  or  not.  Captain 
Usher's  name  could  not  have  been  in  the  lisrt,  as  he  was  not  one  of 
the  party. 

.  To  the  4th  additional  cross-interrogatory  he  says :  ^  have  already 
answered  the  matters  inquired  after  in  this  addition):!  cross-inter- 
rogatory. 

To  the  5th  additional  cross-interrogatory  he  says :  I  do  not  recol- 
lect Alexander  McLeod  having  informed  me  of  the  Caroline  having 
left  Buffalo  on  her  way  to  Navy  Island,  nor  did  he  solicit  permission 
to  prepare  an  expedition  to  destroy  her,  nor  did  he  suggest  that  such 
an  expedition  should  be  fitted  out,  nor  did  I  say  any  thing  to  him  or 
he  to  me  on  the  subject  of  such  an  expedition  the  night  before  the 
Caroline  came  down,  or  at  any  other  time  to  the  best  of  my  recol- 
lection. 

Signed        ALLAN  N.  MACNAB. 

Taken  and  sworn  before  us  this  13th  day  of  September,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  forty-one,  at 
the  town  of  Kingston,  in  Canada. 

Jas.  E.  Small, 
J.  H.  Price, 


Commissioners. 


John  Harris  of  the  town  of  London  in  the  District  of  London 
in  the  Province  of  Canada,  Esquire,  aged  sixty  years,  being  produced 
sworn  and  examined  in  behalf  of  the  defendant  in  the  title  of  these 
depositions,  doth  depose  as  follows,  viz  : 

To  the  1st  interrogatory  he  says :  I  have  no  personal  acquain- 
tance with  Alexander  McLeod,  I  am  not  certain  that  I  ever  spoke  to 


MCLEOD  S    TRIAL. 


121) 


ir  order  to 
balance  of 
1  I  can  rc- 

on  which 

the  boats 
ted  Stat  (J  s. 
irading  the 

that  Cup- 
boat  where 

not  recol- 
nfornmtion 
iar  circinn- 
J  feel  that  I 
'ho  coinmu- 
ceived  from 
tate  or  con- 

n  under  the 
furnish  the 
'  the  olficcrs 
roline.  If  I 
lect  whether 
ot.  Captain 
la  not  one  of 

have  already 
cross-inter- 

io  not  recol- 

|oline  having 

t  permission 

est  that  such 

ng  to  him  or 

t  before  the 

if  my  recol- 

[ACNAB. 
iber,  in  the 
[forty- one,  at 

liissioners. 

of  London 
Ing  produced 
litle  of  these 

il  acquain- 
kver  spoke  to 


him  in  iny  life,  1  knew  him  by  sijjht  not  for  u  lonp<ir  pciioil   ih;m 
!i  week  ;  1  do  not  know  of  whiit  imtioii  ho  was  a  Hiibjuct. 

To  the  'J(l  iiitorrojriilory  ho  siiys :  I  do  rcMMillect  ilio  dcsf  ruc- 
tion of  tliu  Caroline.  1  was  in  Chippcwu  about  tliat  time.  1  was 
llicre  about  a  week  or  ten  days  before  slie  was  (leslroycd. 

To  llie  ,')(!  intorrotratory  bi' says  :  Those  who  wcMit  to  destroy  the 
Caroline  embarked  at  the  mouth  of  tlie  CiiijijM'wa  Creek,  in  the  Dis- 
trii'l  of  Niagara  ;  the  men  were  in  tlie  boats  about  ball'  an  lioir  be- 
fore they  started  ;  they  were  ordered  into  llie  bojits  as  they  arrived. 
1  was  ainontrst  them  enjfajred  under  Captain  Drew  in  mainiiiiir  the 
boats.  I  bad  every  opportunity  that  an  oliiecr  has  of  secinif  and  no- 
tieinjr  those  en{ra<Ted  in  an  expedition  under  bis  eominand. 

T(»  the  llli  interroi^atory  be  says  :  1  (k)  not  know  where  he  was, 
hut  one  tiling  I  do  know,  tliat  ho  was  not  in  any  of  tlie  bouts,  nor  was 
any  one  of  tliat  name. 

To  the  TmIi  interrogatory  ho  says  ;  I  bad  no  knowledge  of  where 
he  was,  be  was  not  in  the  boats. 

To  the  (ilb  interrogatory  he  says  :  Wc  pulled  oirfrom  the  Canada 
shore  towards  Tort  Scblosser.  1  was  in  one  of  tiie  boats.  Captain 
Drew  was  in  command  of  the  boat. 

To  the  7th  interrogatory  he  says  :  I  did  see  all  the  persons  in 
the  boat  I  went  in.  Alexander  ilcLeod  was  not  in  that  boat.  I  did  not 
see  bim  anywhere  on  my  way  from  tlie  Canada  siiore  to  Scblosser. 

To  the  Stb  interrogatory  he  says:  I  did  see  tlio  Caroline  on  the 
night  of  her  destruction.  I  was  one  of  tlie  boarding  parly.  1  boarded 
her  abaft  the  wheel-bouse.  I  went  forward  to  the  forecastle  hatch- 
way and  I  was  afterwards  in  her  cabin.  I  went  on  at  the  same  time 
as  the  other  assailants.  I  believe  I  was  Me /av^ /;cr.?o«  who  left  her. 
With  reference  to  Alexander  JMcLeod,  as  I  have  already  stated,  he 
was  not  with  the  assailants  and  had  nothing  to  do  with  the  destruc- 
tion of  the  vessel. 

To  the  9th  interrogatory  he  says  :  I  did  not  see  that  any  person 
was  killed  nor  did  I  see  any  person  placed  on  the  wharf.  1  saw  one 
man  severely  wounded. 

To  the  10th  interrogatory  he  says  :  I  saw  the  men  on  their  return 
to  the  Canada  shore.  Alexander  McLeod  was  not  among  them. 
Their  names  were  particularly  taken  down  upon  our  return  to  Chip- 
pewa as  they  left  the  boats  ;  the  name  of  McLeod  was  noto7i  the  list 
I  saw  the  list  then,  and  have  seen  it  since. 

To  the  11th  interrogatory  he  says:  Seven  boats  left  Chippewa,  five 
only  reached  the  Caroline,  five  returned  in  company. 

To  the  r2tb  interrogatory  he  says  :  I  knew  Sir  Allan  MacXab  well 
— he  was  on  the  beach  when  we  started.  It  was  by  bis  command 
that  the  expedition  was  undertaken  as  Commander  of  the  Forces,  on 
that  frontier.  The  directions  I  neard  him  give  were  to  destroy  her 
wherever  we  could  find  her. 

To  the  13tb  interrogatory  he  says:  Captain  Andrew  Drejv  was  in 
command  of  the  expedition,  he  undertook  it  by  order  of  Colonel,  now 
Sir  Allan  MacNab. 

To  the  last  interrogatory  he  says :  I  know  nothing  more  than  I 
have  stated.     All  I  can  say  is,  I  am  positive  Alexander  McLeod  was 

17 


m^ 


I  ;J 

fl!f 


^^A' 
&M 


i:M 


,1'    VT    1 

I  .     Ill  1 


...r-i*' 


Ml- 


130 


novi.o  a  uepohtkh. 


not  in  the  bontn  na  I  wns  nctivcly  employed  ns  nidc-do-ciimp  to  Captiiin 
Drew  in  Miiperititeiidinf^  the  iniuiriin^  of  the  l)();itrt. 

(Siir„p,l)  JOHN  HAKUIS. 

Taken  nnd  Hwoni  l)efore  nio  this  thirteenth  diiy  of  Septeniher,  in 
the  year  ol'onr  Lord,  inie  tlionsand  ei;;ht  iinndrcd  and  lorty-on*- 
at'the  town  of  Kingston,  in  Canada. 

Jas.  K.  Smali,,  )  r> 
J.  W,  I'nicE,       J 


uniHsionurH. 


■<„. 


.  ^ti^- 


4'.   «* 


Answers  to  the  intcrropntories  by  way  of  cross-examination. 

The  said  John  Harris  to  the  1st  cross-interr«)nfatory  says:  I  reside 
in  the  town  of  London,  in  tiie  District  of  London  in  the  Province  of 
Canada.  I  have  resided  there  since  the  year  IHHk  I  am  not  a  na- 
tive of  Cana(hi  but  am  a  native  of  England.  I  iiave  resided  in  Cana- 
da since  ISl'J.  i  am  sixty  years  of  ago,  and  am  Treasurer  of  the 
London  District. 

To  the  'id  cross-interrogatory  he  says  :  I  was  attached  to  the  Na- 
val lirigade  at  Chippewa.  1  was  acting  as  Aide-de-camp  to  Captain 
Drew.     I  was  not  in  command  of  or  attached  to  any  vessel. 

To  the  3d  cross-interrogatory  he  says:  It  is  probable  1  did  see  him 
daring  the  week  previous  to  the  burning  of  the  Caroline,  but  when 
or  where  or  how  often,  i  cannot  say. 

To  the  4'th  cross-interrogatory  he  says  :  I  never  spoke  to  him  nor 
did  1  hear  him  converse  on  the  subject  of  the  Caroline. 

To  the  .oth  cross-interrogatory  he  says :  I  never  spoke  to  him  in 
my  life,  nor  did  he  to  me  on  any  subject. 

To  the  Gth  cross-interrogatory  he  says  :  Alexander  McLeod  never 
was  in  a  boat  with  me  at  any  time  whatever. 

To  the  7th  cross-interrogatory  he  says :  I  do  not  know  nor  have  I 
understood  from  him  that  he  ever  went  round  Navy  Island  at  any 
time. 

To  the  8th  cross-interrogatory  he  says :  I  have  before  stated  hat 
I  never  had  any  conversation  with  Alexander  McLeod  whatever. 

To  the  9th  cross-interrogatory  he  says :  The  plan  for  destroying 
the  Caroline  first  occurred  to  me  on  the  afternoon  of  the  29th  of  De- 
cember, 1837,  in  consequence  of  having  been  directed  either  by 
Colonel  MacNab  or  Captain  Drew  to  observe  her  motions.  I  saw 
her  go  twice  from  Schlosser  to  Navy  Island  and  land  men  at  the  lat- 
ter place.  She  then  returned  to  Schlosser  and  let  off  her  steam.  I 
reported  this  circumstance  either  to  Colonel  MacNab  or  Captain 
Drew  or  both  and  suggested  the  expediency  of  cutting  her  out.  I 
did  not  communicate  my  views  on  the  subject  to  Alexander  McLeod 
or  any  other  person  than  those  above  named,  nor  could  McLeod  have 
known  of  it  to  the  best  of  my  knovUedge. 

To  the  10th  cross-interrogatory  he  says :  I  observed  the  Caroline 
during  the  afternoon  of  the  29th  December,  1837,  coming  down  the 
river  to  Schlosser.  McLeod  did  not  communicate  anything  respect- 
ing her  to  me.  We  commenced  our  preparations  toward  dusk  after 
she  had  let  her  steam  off. 

To  the  11th  cross-interrogatory  he  says :  I  have  no  recollection  of 
being  in  Davis's  or  any  other  tavern  at  Chippewa  the  day  after  tiic 


'X 


A.  . 


?LEOD  s  TniAr,. 


i;!i 


0  Cnptniii 

UilUS. 

•iiiImt,  in 
I'oily-oiif 

ier«. 


[ion. 

;  1  rcs'ulo 
'roviiioo  of 
I  not  n  nil- 
1(1  ill  Ciiim- 
rer  of  the 

to  the  Nn- 
to  Cnptaiii 

tlid  see  him 
I,  but  when 

to  him  nor 

e  to  him  in 

:Leod  never 

nor  have  1 
land  at  any 

stated    hat 
intever. 

destroying 
i  29th  of  De- 
either  by 
|)ns.  I  saw 
tn  at  the  lat- 
Ir  steam.  I 
or  Captain 
I  her  out.     I 

lev  McLeod 

IcLeod  have 

Ihe  Caroline 
[tr  down  the 
fing  respect- 
dusk  after 

;ollection  of 
ly  after  tiiC 


Imrninjjf  of  the  ('arolinc,  or  nt  nriy  otluT  time  during  my  stay  iif 
("hippcwii,  nor  did  I  see  IVIcLood  rhcTc  to  llu"  host  ot'iny  r«'i'oll<M'|ioii 
(III  flic  Monday  or  any  o'lu     <iiiy  :irtcr  ilic  Idirniii^:  of  tm-  Cnroliiic. 

'I'd  tlic  l'2tli  cross-inlciTii;^  itory  lie  ■  ;iys  :  I  was  prcsi'iit  at  the  liiun- 
iiiy  of  the  Caroline,  and  I  uas  aiMivcly  employed  in  lilting  out  and 
arr;ui;;iiig  tlic  (wpcrlifioii  nii  the  -lUli  ncccinlMM',  IS'i7,  and  I  rinlmrk- 
od  willi  it.  I  cannot  say  liow  many  persons  were  on  ilio  nhore,  but 
there  were  a  great  mniiy. 

To  the  \'M\i  eross-siiterrogatory  lie  says:  Tliere  were  p\aeilv 
forty-one,  neither  more  uor  less,  in  the  live  boats,  that  re-.icheil  llie 
('uroline — there  may  have  been  as  many  as  twelve  in  the  two  boats 
tiint  did  not  rvnvM  her.  I  Knew  a  ^freat  many  of  i!i«> c  wlio  emliarkcd 
in  the  enterprise,  others  1  knew  by  si;.'lii,  and  some  I  did  not  Khow. 
1  have  before  stated  I  was  one  nf  tliem.  Tliere  were  nitie  in  the  boat 
I  was  in.  I  was  on  board  the  Caroline,  and  [  took  a  very  active  part 
in  setting  lire  to  her,  and  was  the  last  that  left  her. 

To  the  lith  cross-interrogatory  ho  says  :  They  were  live,  six,  and 
one  from  onr  boats.  I  cannot  say  exactly  how  many  were  in  each 
boat;  there  were  nine  in  the  boat  in  which  I  was.  I  believe  they 
were  boats  belonging  to  steamboats,  such  as  are  generally  known  a^ 
cutters.     There   were  seven  started,  and  live    reached  the  Caroline. 

To  the  fifteenth  cross-interrogatory  he  says  :  I  have  already  stated 
that  many  I  knew  well,  some  I  knew  by  sight,  and  others  I  did  not 
know.  I  saw  the  whole  of  them,  but  cannot  suy  that  I  saw  all  theii 
faces,  or  recognized  the  whole  of  them. 

To  the  16th  cross-interrogatory  he  says:  I  knew  everyone  that  was 
in  the  same  boat  with  me,  particularly,  I  spoke  to  and  recognized  each 
one  of  them.  Captain  Andrew  Drew  commanded  the  expedition,  and 
he  also  commande(J  the  boat  I  was  in. 

To  the  17th  cross-interrogatory  hf»  says  :  I  returned  in  the  same 
boat  as  I  embarked  in,  but  all  the  nine  persons  did  not  return 
with  me. 

To  the  18th  cross-interrogatory  he  says :  All  the  boats  that  em- 
barked did  not  reach  the  Caroline.  Five  did,  two  failed.  Captain 
Andrew  Drew  commanded  one  boat.  Shepherd  McCorniack,  Lieuten- 
ant in  the  Royal  Navy,  commanded  another  boat,  Christopher  Rice 
commanded  another  boat,  Mr.  (jor'on  commanded  another,  and  the 
Honorable  John  Elmsley  commanded  the  fifth.  The  two  which  did 
not  reach  the  Caroline  were  commanded  by  Messrs.  Hector  and 
Battersby.  The  seven  boats  returned  to  Chippewa.  There  were  nut 
many  seconds  between  each  of  the  live  boats  reaching  the  Caroline. 
The  boat  in  which  I  was,  was  the  first  boat  that  arrived. 

To  the  19th  cross-interrogatory  he  says :  There  was  no  man  of 
the  name  of  McLeod  in  the  expedition. 

To  the  20th  cross-interrogatory  he  says  :  From  the  bank  at  the 
mouth  of  the  Chippewa,  there  was  no  wharf  or  pier. 

To  the  21st  cross-interrogatory  he  says  :  They  did,  and  all  started 
at  the  same  time. 

To  the  22nd  cross-interrogatory  he  says  :  They  did  not  all  return  at 
the  same  time,  nor  did  they  all  disembark  at  the  same  time,  five  only 
returned  shortly  after  each  other.     I  was  in  the  last  of  the  five  boats. 


..V  ^ 


A: 
-II 


k  -!'■•*'. 


A 


i  t 


I 


132 


nOULB  S    KEPORTER. 


'19 


Tlic  crews  of  the  four  other  boats  were  on  the  beach  when  I  landed, 
iiiid  the  wliolc  were  immediately  mustered,  and  the  names  taken 
down.  I  did  not  see  and  recognize  all  the  persons  who  embarked. 
I  did  not  stop  to  sec  the  names  taken  down,  but  left  a  person  in  the 
act  of  doing  it. 

To  the  '23rd  cross-interrogatory  he  says :  There  were  none  of  the 
regular  army,  several  of  the  navy,  the  remainder  were  of  the  militia  un- 
der Co!.  McNab.  They  volunteered  from  the  force  under  Col.  IMcNab, 
upon  being  informed  that  their  services  were  required  forasecrot  ex- 
pedition. They  walked  down  together,  but  did  not  go  in  rank  and  (ile. 

To  the  2  Uh  cross-interrogatory  he  says :  It  was  not,  nor  upon  its 
ilisembarkation. 

To  the  25lh  cross-interrogatory  he  saj'^s  :  They  were  not  dressed 
as  soldiers  or  sailors,  but  in  their  ordinary  clothing.  Captain  Drew, 
i  think,  was  the  only  person  in  uniform. 

To  the  26th  cross-interrogatory  he  says :  With  sabres,  pikes,  cut- 
lasses, and  some  pistols,  I  cannot  say  where  they  were  procured — 
their  dresses  were  their  own.  The  impression  upon  my  mind  is, 
that  some  of  the  arms  were  procured  from  the  Provincial  Dragoons. 

To  the  27th  cross-interrogatory  he  says :  They  went  to  their 
respective  quarters. 

To  the  28th  cross-interrogatory  he  says :  They  disembarked  about 
midnight.  It  was  cloudy,  but  not  a  dark  night.  I  cannot  positively 
say  whether  the  moon  was  up  or  had  set.  1  have  already  stated  that 
the  force  separated  and  went  to  their  respective  quarters.  They 
were  at  Chippewa  the  next  morning  at  sunrise,  with  the  rest  of  the 
force,  under  Colonel  McNab,  but  not  embodied  as  a  distinct  corps. 
1  have  not  since  seen  them  together.  I  have  not  since  seen  them 
armed  and  equipped  as  they  were  that  night. 

To  the  29th  cross-interrogatory  he  says :  I  cannot  say  positively, 
but  it  must  have  been  after  nine  o'clock,  as  we  were  absent  two 
hours  and  some  minutes.  I  do  not  recollect  that  I  consulted  my 
watch  on  the  occasion. 

To  the  30th  cross-interrogatory  he  says :  I  was  not.  Some  of  the 
party  were.  Mr.  McCormack  was  severely  wounded,  and  another 
slightly.     I  think  that  was  ail.     There  were  none  killed. 

To  the  31st  cross-interrogatory  he  says:  Yes.  Resistance  was 
made  by  the  persons  attached  to  the  Caroline.  Some  of  them  had 
weapons.  Whether  they  all  had  or  not  I  cannot  say.  There  were 
tire  arms.  I  saw  a  pistol  in  the  hands  of  one  person,  who  snapped  it 
at  one  of  our  men,  but  whether  it  went  off  or  not  I  cannot  say. 
Another  had  a  gun  or  rifle  and  fired  from  the  bow  of  the  vessel  at  us. 
As  we  approached,  the- ball  passed  between  Captain  Drew  and  myself. 
The  person  who  fired  called  out,  "  turn  up  boys,  the  enemy  are 
coming.  What  boats  are  there  1  give  the  countersign,"  and  then 
lired.  I  think  I  saw  other  weapons  in  the  hands  of  the  people  on 
board  the  Caroline,  but  I  cannot  describe  them. 

To  the  32nd  cross-interrogatory  he  says :  Besides  what  I  have 
stated  in  the  foregoing  answer,  fire-arms  were  discharged  from  the 
direction  of  a  white  house  not  far  from  the  wharf,  probably  at  the 
distance  of  sixty  or  seventy  yards.     I  cannot  say  whether  they  used 


McLec 


MCLEOD  S   TRIAL. 


in:i 


I  landed, 
les  taken 
nbavked. 
on  in  the 

me  of  the 
nilitia  un- 
1.  McNab, 
secrot  cx- 
k  and  die. 
r  upon  its 

3t  dressed 
ain  Drew, 

pikes,  cut- 
irocurod — 
J  mind  is, 
Dragoons. 
It  to  their 

rked  about 
t  positively 

stated  that 
ers.     They 

rest  of  the 
.inct  corps. 
I  seen  them 

lositively, 
jsent  two 
suited  my 

5ome  of  the 
md  another 

istance  was 
them  had 

There  were 
snapped  it 

cannot  say. 

/essel  at  us. 
and  myself, 
enemy  are 
,"  and  then 
e  people  on 

,vhat  I  have 
ed  from  the 
bably  at  the 
r  they  used 


any  swords  or  pikes,  or  other  military  weapons.  The  steamboat  luid 
no  cannon  mounted.  I  saw  no  caimon,  fire-arms,  or  nuinitions  oi' 
war  or  military  stores  on  board  of  the  Caroline,  as  I  did  not  soarcii 
for  any,  further  than  those  which  I  saw  in  the  hands  of  the  people,  as 
above  stated. 

To  the  83d  cross-interropatory  he  says  :  I  am  not  awnro  that  any 
one  was  killed  on  board.  There  were  one  or  two  wounded.  One 
of  them  had  a  sabre  cut,  who  1. believe,  was  put  on  the  wharf,  by  some 
of  our  men.  I  did  not  kill  or  wound  any  one.  I  saw  no  one  killed 
I  saw  no  wound  inliicted.  I  did  not  discharge  a  gun  or  pistol,  hav- 
ing none  with  me.  I  struck  no  one  with  a  sword  or  pike  or  other 
weapon. 

To  the  34th  cross-interrogatory  he  says :  No  one.  They  were 
all  driven  ashore  before  she  was  cast  loose,  as  Captain  Drew's  orders 
were  to  drive  them  on  shore  and  hurt  as  few  as  possible,  and  to  cast 
her  ofTfrom  the  vharf  previous  to  setting  (ire  to  her,  so  as  to  prevent 
the  possibility  of  any  injury  to  private  property  on  shore.' 

To  the  35th  cross-interrogatory  he  says :  I  was  not  on  shore,  but 
I  think  Mr.  Elmsley  and  some  of  the  men  were  on  the  wharf.  I  di<l 
not  go  into  the  warehouse,  nor  do  I  know  that  any  of  the  attacking 
party  went  in. 

To  the  36th  cross-interrogatory  he  says :  I  did  not  take  any  of  the 
articles  mentioned  in  this  cross  interrogatory  from  the  Caroline,  nor 
do  I  know  of  any  Jther  person  having  done  so,  nor  of  any  being- 
brought  to  Chippewa. 

To  the  37th  cross-interrogatory  he  says:  I  did  not  hear  of  her 
coming,  to  the  best  of  my  recollection.  I  think  I  heard  a  steamboat 
was  to  be  down.  I  knew  nothing  of  the  Caroline  till  1  saw  her  on 
the  29th  December,  coming  down  the  river,  near  Buckhorn  Island. 
I  do  not  remember  who  informed  me  that  a  steamboat  was  coming, 
but  I  am  certain  it  was  not  McLeod. 

To  the  38th  cross-interrogatory  he  says  :  I  never  heard  of  the  man 
before  now  that  I  know  of. 

To  the  39th  cross-interrogatory  he  says:  No. 

To  the  40th  cross-interrogatory  he  says  :  No, 

To  the  41st  cross-interrogatory  he  says  :  He  was  not,  that  I  know 
of. 

To  the  42d  cross-interrogatory  he  says  :  He  never  did  to  me,  nor 
to  my  knowledge  to  any  one  or  more  of  the  party  who  ^attacked  the 
Caroline.     I  have  no  knowledge  of  his  residence. 

To  the  43d  cross-interrogatory  he  says  :  I  never  saw  him. 

To  the  44th  cross-interrogatory  he  says:  I  never  heard  or  knew 
that  he  Avas  there. 

To  the  45th  cross-interrogatory  he  says  :  McLeod  never  spoke  to 
me  upon  the  subject,  nor  to  any  person  in  my  presence  or  hearing. 

To  the  46th  cross-interrogatory  he  says:  I  know  nothing  of  the 
matters  inquired  of  me  in  this  cross-interrogatory. 

To  the  47th  cross-interrogatory  he  says  :  I  do  not  think  that 
McLeod  ever  spoke  to  me  in  his  life,  nor  I  to  him.  I  never  heard 
any  conversation  between  him  and  any  other  person  or  persons  upon 
the  subject  of  the  Caroline. 


!,    '' 


,ifr 

>  r   ■ 


V'^W 


134 


gourd's  reporter. 


To  the  48th  cross-interrogatory  he  says :  I  have  before  said  I 
never  heard  McLeod  speak  to  any  person  upon  the  subject  of  the 
Caroline. 

To  the  49th  cross-interrogatory  he  says  :  I  do  not  know,  nor  have 
1  understood  from  him  that  he,  directly  or  indirectly,  advised  the 
destruction  of  the  Caroline,  nor  do  I  believe  he  ever  did. 

To  the  50tii  cross-interrogatory  he  says  :  I  never  did. 

To  the  51st  cross-interrogatory  he  says:  Seven.  And  seven 
started  from  the  mouth  of  the  Chippewa  creek.  I  am  not  aware 
that  any  of  them  got  aground  on  Buckhorn  island. 

To  i.n  52d  cross-interrogatory  he  says:  There  was  no  pilot  em- 
ployed I  know  a  family  living  near  Chippewa  of  the  name  of 
Wiscoon.  There  were  none  of  them  employed  as  pilots.  .  There  was 
no  one  of  that  name  in  the  expedition. 

To  the  53d  cross-interrogatory  he  says  :  His  order  was  given  to 
Captain  Drew.  It  was  verbal  and  private  ;  it  Avas  not  a  permission, 
it  was  a  command — it  was  given  on  the  29th  December,  1837,  at 
head  quarters  at  Chippewa.  The  final  command  was  given  on  the 
beach,  just  before  starting,  in  my  presence,  but  not  in  the  hearing  of 
any  one  else. 

To  the  54th  cross-interrogatory  he  says  :  I  do  not  know  that  there 
was  an  armed  force  stationed  on  the  land  at  or  near  the  wharf  at 
which  the  Caroline  was  lying.  I  have  before  stated,  that  shots  were 
iired  from  the  front  of  the  white  house  near  the  wharf. — I  have  before 
stated,  that  I  believe  that  Lieut.  Elmsley  was  on  the  wharf,  but  with 
how  many  men,  or  whether  he  was  ordered  there,  I  cannot  say,  nor 
do  I  know  whether  he  met  with  any  opposition,  or  discovered  any 
armed  men. 

To  the  last  cross-interrogatory  he  says :  I  do  not. 

Signed.        JOHN  HARRIS. 

Taken  and  sworn  before  us,  this  30th  day  of  September,  in  the 
year  of  our  Lord,  one  thousand  eight  hundred  and  forty-one,  at 
the  town  of  Kingston,  in  Canada. 

J    ij    p  '      >  Commissioners. 

Filed,  September  18th,  1841. 
J^ote. — In  the  original,  the  signatures  of  the  Commissioners  appear 
at  the  foot  of  each  page,  but  these  are  omitted  in  the  copy. 

(A  copy)  H.  Dana,  Clerk. 

Edward  Zealand,  of  the  town  of  Hamilton,  in  the  Gore  District, 
and  Province  of  Canada,  mariner,  aged  forty-five  years,  being  pro- 
duced, sworn  and  examined  on  behalf  of  the  defendant,  in  the  title 
of  these  depositions  named,  doth  depose  as  follows : 

To  the  first  interrogatory  he  says :  I  do  know  Alexander  McLeod, 
and  have  known  him  since  about  January  or  Kebruary,  1838,  I  was 
not  acquainted  with  him  in  December,  1837.  I  knew  his  person  by 
sight  in  December,  1837,  but  did  not  know  his  name  was  McLeod 
until  18^8.     I  think  him  a  native  of  Scotland  and  a  British  subject. 

To  the  f  acond  interrogatory,  he  says :  I  do  recollect  the  destruc- 


-.-.  »■•. 


re  said  I 
ct  of  the 

nor  have 
ivised  the 


nd  seven 
not  aware 

pilot  cm- 
I  name  of 
rhere  was 

s  given  to 
ermission, 
■,  1837,  at 
en  on  the 
hearing  of 

that  there 
le  wharf  at 
shots  were 
lave  before 
•f,  but  Avith 
Dt  say,  nor 
overed  any 


lARRIS. 
ber,  in  the 
ty-one,  at 

sioners. 


nets  appear 

j  Clerk. 

re  District, 

)eing  pro- 

in  the  title 

McLeod, 

;38.    I  was 

person  by 

s  McLeod 

h  subject. 

le  destruc- 


MCLEOD  S   TRIAL. 


135 


lion  of  the  Caroline.     I  was  in  Chippewa  at  that  time,  and  had  been 
there  from  about  the  twenty-fifth  day  of  December,  1837. 

To  the  third  interrogatory,  he  says  :  The  expedition  embarked 
from  the  Chippewa  creek.  I  think  those  who  embarked  were  en- 
gaged in  preparation  on  the  beach,  for  about  an  hour  before  starting. 
I  was  among  the  others  assisting  in  the  preparations  during  that 
time.  I  had  no  opportunity  of  noticing  tliose  who  went,  except  the 
persons  in  the  boat  in  which  I  went. 

To  the  fourth  interrogatorjr,  he  says :  I  do  not  know  where  Alex- 
ander McLeod  was  at  the  time  mentioned  in  this  interrogatory.  1 
know  he  was  not  in  the  boat  in  which  I  was. 

To  the  fifth  interrogatory,  he  says :  I  do  not  know  where  the  said 
Alexander  McLeod  was  at  the  time  mentioned  in  this  interrogatory. 
I  know  he  was  not  in  my  immediate  neighborhood. 

To  the  sixth  interrogatory,  he  says :  I  went  on  the  expedition  in  a 
boat  commanded  by  Captain  Drew. 

To  the  seventh  interrogatory,  he  says :  I  saw  all  the  persons  in 
the  boat  I  went  in  from  Canada  to  Schlosser.  Alexander  McLeod 
was  not  one  of  them,  and  I  did  not  see  him  on  my  way  from  Canada 
to  Schlosser. 

To  the  eighth  interrogatory,  he  says :  I  did  see  the  Caroline  the 
night  of  her  destruction.  I  was  on  board  of  her,  aft,  in  the  cabin, 
and  on  the  larboard  side  of  the  deck.  I  got  on  board  of  the  Caroline 
about  the  same  time  with  the  other  assailants.  I  left  her  nearly  the 
last.  I  did  not  see  Alexander  McLeod  among  the  assailants,  and  I 
do  not  believe  he  was  one  of  them. 

To  the  ninth  interrogatory,  he  says :  There  was  a  dead  man  lying 
on  the  dock  at  Schlosser,  but  he  was  not  conveyed  there.  The  man 
referred  to  met  his  death  during  the  attf  k  upon  the  Caroline,  but  I 
do  not  know  whether  he  received  the  shot  on  the  Caroline,  or  on  the 
dock.  I  Uiink  the  shot  which  struck  him  proceeded  from  the  direc- 
tion of  the  tavern  on  shore.  He  could  not  have  been  carried  or 
conv  yed  to  the  dock  without  my  knowledge. 

To  the  tenth  interrogatory,  he  says :  I  did  see  the  men  who  had 
been  engaged  in  the  destruction  of  the  Caroline,  when  they  landed 
on  the  Canada  shore,  upon  their  return  from  Schlosser.  I  did  not 
see  Alexander  McLeod  among  them,  and  believe  that  he  was  not 
among  them.  I  did  not  see  hm.  at  any  time  after  the  boats  left  the 
Canada  shore  for  the  purpose  of  destroying  the  Caroline,  and  up  to 
their  return  and  landing  on  the  Canada  shore  after  her  destruction. 

To  the  eleventh  interrogatory,  he  says :  Seven  boats  started,  five 
reached  the  Caroline,  and  five  returned  almost  in  company. 

To  the  twelfth  interrogatory,  he  says :  I  know  Sir  Allan  N.  Mc- 
Nab.  I  do  not  know  where  he  was  at  the  time  the  expedition  start- 
ed. I  do  not  know  by  whose  command  the  expedition  was  under- 
taken. I  did  not  hear  Sir  Allan  N.  McNab  give  any  directions.  I 
have  no  doubt  the  expedition  was  undertaken  by  comrr>and  of  Sir  Al- 
lan N.  McNab.  Knowing  Captain  Drew  to  have  been  in  the  Royal 
Navy,  I  think  he  would  not  have  entered  on  the  expedition  without 
being  properly  authorized  to  do  so ;  and  on  that  account  I  joined  the 
expedition,  and  served  as  in  the  regular  service. 


.■       ' .     I  1  (    1  J'  I 


■  Iff 

■  h:  f 


fif 


IM 


J** 


%:5 


136 


GOULD'S   UEPORTER. 


■#!f>" 


-  /■ 


'     To  the  thirteenth  interrogatory,  he  says:  Captain  Drew   was  in 
command  of  the  expedition,  but  1  do  not  know  by  whose  order. 

To  the  last  interrogatory,  he  says  :  I  know  nothing  further  respect- 
ing the  matters  in  question.  EDWARD  ZEALAND. 
Sworn,  taken  and  subscribed,  at  the  town  of  Hamilton,  Canada, 
this  eighteenth  day  of  September,  1841,  before  me, 

SECKER  BROUGH,  Commissioner. 

Answers  to  the  interrogatories  by  way  of  cross-examination  propos- 
ed to  Edward  Zealand. 

To  the  first  cross-interrogatory,  he  says:  I  reside  at  Hamilton, 
and  have  resided  there  about  six  years.  I  am  a  native  of  England, 
and  have  resided  in  Canada  since  the  year  eighteen  hundred  and 
thirteen.     I  am  aged  forty-five  years,  and  am  a  mariner. 

To  the  second  cross-interrogatory,  he  says :  I  was  in  charge  of 
the  boats  and  seamen  on  shore  at  Chippewa  at  the  time  mentioned  in 
this  interrogatory.     I  was  not  attached  to  any  vessel. 

To  the  third  cross-interrogatory,  he  says  :  I  did  only  once.  I  saw 
him  in  a  boat  as  one  of  a  reconnoitering  party.  I  think,  but  am  not 
sure  it  was  McLeod,  as  I  did  not  know  his  name  at  the  time.  I  think 
it  was  the  person  whom  I  afterwards  understood  to  be  McLeod.  I 
think  this  was  on  the  day  before  the  day  of  the  burning  of  the  Caroline. 

To  the  fourth  cross-interrogatory,  he  says :  I  neither  conversed 
with  McLeod,  nor  heard  him  converse,  nor  speak  on  the  subject  of 
the  Caroline. 

To  the  fifth  cross-interrogatory,  he  says  :  I  never  at  any  time  heard 
McLeod  speak  on  the  subject  of  the  Caroline. 

To  the  sixth  cross-interrogatory,  he  says :  I  went  in  a  boat  with 
Captain  Graham  round  Navy  Island,  for  the  purpose  of  reconnoiter- 
ing, on  the  daj"^,  1  think,  before  the  day  of  the  burning  of  the  Caro- 
line, and  a  person  was  in  the  boat  who,  I  think,  was  McLeod,  but  am 
not  certain. 

To  the  seventh  cross-interrogatory,  he  says :  I  only  know  of  Mc- 
Leod's  going  round  Navy  Island  according  as  I  have  stated  in  my 
answer  to  the  last  preceding  interrogatory.  I  have  never  understood 
from  him  that  he  went  round  Navy  Island  at  any  time.  On  the  oc- 
casion of  going  round  Navy  Island,  as  I  have  mentioned,  I  remember 
nothing  particular  occurring,  but  that  the  people  on  the  Island  fired 
constantly  at  us  with  grape,  round  shot,  and  musket  shot. 

To  the  eighth  cross-interrogatory,  he  says :  Never. 

To  the  ninth  cross-interrogatory,  he  says :  It  did  not  occur  to  me 
that  an  expedition  was  contemplated  ;  it  was  communicated  to  me 
about  two  hours  before  it  started,  but  I  was  not  aware  that  the  de- 
struction of  the  Caroline  was  the  object  of  the  expedition,  until  the 
time  of  starting.  I  did  not  communicate  the  plun,  nor  any  part  of  it 
to  McLeod.  He  was  not  present,  to  my  knowledge,  when  it  was 
communicated  to  me. 

To  the  tenth  cross-interrogatory,  he  says  :  I  did  not  discover  she 
was  at  Schlosser  until  we  failed  in  finding  her  at  Navy  Island.  Mc- 
Leod never  informed  me  where  she  was.  We  commenced  prepara- 
tions some  time  near  eight  o'clock  in  the  evening  of  the  29th  of  De- 


/>. 


MCLEOD  S    TRIAL, 


137 


w   was  in 
)rder. 
errespect- 
lLAND. 
1,  Canada, 


ssioner. 

ion  propos- 

Hamilton, 
if  England, 
indred   and 

charge  of 
lentioned  in 

nee.  I  saw 
,  but  am  not 
me.  I  think 
McLeod.  I 
he  Caroline, 
r  conversed 
e  subject  of 

y  time  heard 

a  boat  with 

reconnoiter- 

of  the  Caro- 

eod,  but  am 

:now  of  Mc- 
Itated  in  my 
understood 
On  the  oc- 
I  remember 
Island  fired 


I  occur  to  me 
Ijated  to  me 
I  that  the  de- 

m,  until  the 
Iny  part  of  it 

ifhen  it   was 

Idiscover  she 

[sland.     Mc- 

jed  prepara- 

2Dth  of  De- 


,(*."■ 


'*fv 


After  the  expedition,  wo  went   to   our  respective 


s's 


comber,   1837 
quarters. 

To  the  eleventh  cross-interronratorj',  he  says :  I  was  at  Davi 
tavern  at  the  time  mentioned  in  this  interrogatory.  I  did  not  see 
McLeod  at  or  near  Davis's  tavern,  or  converse  with  him  at  any  time 
during  my  stay  at  Chippewa. 

To  the  twelfth  cross-interrogatory,  he  says  :  I  was  at  the  burning 
of  the  Caroline.  Was  concerned  in  the  expedition,  and  saw  it  em- 
bark in  the  Chippewa  creok.  I  think  there  were  within  one  hun- 
dred persons  on  the  shore  when  the  boats  started,  but  I  did  not  pay 
much  attention  to  the  numbers. 

To  the  thirteenth  cross-interrogatory,  he  says  :  I  think  about  fifty 
or  sixty  persons  embarked.  I  did  not  know  them  all.  I  was  one  of 
them.  Eight  persons  went  in  the  boat  I  went  in.  I  went  on  board 
the  Caroline  and  assisted  in  the  destruction. 

To  the  fourteenth  cross-interrogatory,  he  says :  The  kind  of  boats 
used  were  such  as  arc  c'>^iployed  about  steamers  and  schooners.  The 
average  number  in  each  boat  was  about  eight.  The  boats  were  of 
pretty  much  the  same  size  and  description,  and  were  seven  in 
number. 

To  the  fifteenth  cross-interrogatory,  he  says :  I  did  not  know  or 
recognize  all  who  were  in  the  expedition. 

To  the  sixteenth  cross-interrogatory,  he  says  :  I  was  not  previous- 
ly personally  acquainted  with  all,  nor  do  I  remember  to  have  spoken 
to  each  individual ;  but  I  observed  the  face  of  each  of  them.  Capt. 
Drew  commanded  the  expedition,  and  the  boat  in  which  I  was. 

To  the  seventeenth  cross-interrogatory,  he  says:  I  returned  in  the 
same  boat  in  which  I  went,  and  all  the  persons,  except  Captain 
Drew,  who  embarked  in  the  same  boat  with  me,  returned  with  me. 

To  the  eighteenth  cross-interrogatory,  he  says :  Only  five  boats 
reached  the  Caroline — two  of  the  seven  failed.  I  do  not  know  who 
commanded  them.  I  believe  they  lost  their  way.  The  boats  Avhich 
reached  the  Caroline  arrived  nearly  at  the  same  time. 

To  the  nineteenth  cross-interrogatory,  he  says:  I  do  not  know 
whether  any  man  of  the  name  of  McLeod  was  in  the  expedition. 

To  the  twentieth  cross-interrogatory,  he  says :  The  expedition  did 
not  embark  from  any  wharf  or  pier. 

To  the  twenty-first  cross-interrogatory,  he  says :  The  boats  all  lay 
near  each  other  along  the  beach,  and  started  at  the  same  time. 

To  the  twenty-second  cross-interrogatory,  he  says :  The  five  boats 
which  reached  the  Caroline,  returned  at  pretty  nearly  the  same  time, 
and  same  place.  I  did  not  recognize  at  the  disembarkation  all  who 
embarked. 

To  the  twenty-fourth  cross-interrogatory,  he  says :  The  force  was 
not  paraded  or  displayed  in  military  order,  either  previous  to  its  em- 
barkation, or  on  its  disembarkation. 

To  the  twenty-fifth  cross-interrogatory,  he  says  :  They  were  dress- 
ed in  their  usual  and  customary  dress;  not  in  clothes  given  out  to 
them,  but  in  their  own  clothes.  Those  who  came  from  schooners, 
were  dressed  as  sailors — civilians  as  civilians — there  was  no  particu- 
lat  uaiform. 


■«»■■ 


)-■ 


t 


'""m 


:'■.      Jt-;     -J"  I. 


••,i ' 


/• 


Vdb 


GOULD  S    REPORTER. 


15  ,     '^Z 


To  the  26th  ross-interrogatory  he  says:  They  were  armed  wiUi 
pistols,  cutlasses  and  pikes.  The  arms  were  issued  from  the  Ordi- 
nance Department. 

To  the  27th  cross-interrogatory  he  says  :  After  the  expedition  re- 
turned, the  crews  did  not  continue  together  but  went  to  their  respec- 
tive quarters. 

To  the  28th  cross-interrogatory  he  says  :  I  think  the  force  disem- 
barked about  two  o'clock  in  the  morning — it  was  not  moonlight,  or 
cloudy,  but  a  little  hazy,  sufficiently  light  to  distinguish  each  other 
as  we  sat  in  the  boats.  The  forces  on  their  return  went  to  their  re- 
spective quarters  ;  they  were  not  together  at  sunrise  that  morning 
as  a  body  on  duty,  though  some  of  them  might  have  happened  of 
their  own  accord  to  be  together.  I  have  not  since  seen  them  to- 
gether as  a  body.  I  have  since  seen  individuals  of  that  force  on  duty 
in  the  different  departments. 

To  the  29th  cross-interrogatory  he  says :  At  about  ten  o'clock. 

To  the  30th  cross-interrogatory  he  says :  I  was  not  wounded, 
Lieut.  McCormiok  and  Richard  Arnold  of  the  assailing  party  were 
wounded,  but  I  am  not  aware  that  any  one  was  killed. 

To  the  31st  cross-interrogatory  he  says :  I  did  not  see  any  resist- 
ance made  on  board  of  the  Caroline,  with  the  exception  of  a  shot 
which  was  fired  from  the  after-part  of  the  vessel  at  the  time  of  board- 
ing. I  think  that  shot  struck  and  wounded  Lieut.  McCormick.  I 
saw  no  weapons. 

To  the  32d  cross-interrogatory  he  says :  One  gun  or  pistol  was 
discharged  as  stated  in  my  answer  to  the  last  preceding  interro- 
gatory. I  did  not  see  them  use  any  swords  or  other  weapons.  The 
boat  was  not  armed  in  the  after-part  where  alone  I  was.  I  did  not 
see  any  arms  or  munitions  of  war  of  any  description  on  board  of  the 
Caroline. 

To  the  33d  cross-interrogatory  he  says :  I  did  not  see  any  one  of 
the  Caroline's  crew  killed,  or  receive  a  wound.  I  saw  one  man  lying 
dead  on  the  dock,  who  I  suppose  belonged  to  the  Caroline  but  on 
what  spot  he  received  the  shot  I  do  not  know — but  I  did  not  kill  or 
wound  any  one.  I  did  not  discharge  a  gun  or  pistol,  or  strike  any 
one  with  any  weapon. 

To  the  34th  cross-interrogatory  he  says  :  Not  one  ! 

To  the  35th  cross  interrogate 'y  fie  says:  I  went  on  shore  at 
Schlosser  for  the  purpose  of  cutting  loose  the  stern-fast  of  the  Caro- 
line, to  prevent  the  flames  from  her  communicating  with  the  store- 
house on  shore.  I  saw  some  two  or  three  others  of  the  assailing 
party  on  shore.  I  did  not  myself  nor  did  I  see  any  body  else  go  into 
the  warehouse. 

To  the  36th  cross-interrogatory  he  says :  Mr.  Harris  of  London, 
having  fallen  overboard,  while  getting  from  the  Caroline  to  his  boat, 
and  having  pulled  him  out  of  the  water,  I  returned  from  my  boat  on 
board  the  Caroline  for  the  purpose  of  getting  something  to  cover  Mr. 
Harris,  as  it  was  a  cold  night,  and  took  a  piece  of  old  carpet  for  the 
purpose.  I  saw  also  a  mattress  taken  from  on  board  the  Caroline, 
and  saw  it  thrown  or  fall  into  the  water,  and  carried  off  by  the  water. 


MCLEOD  S   TRIAL. 


139 


mcd  wl»h 
the  Ordi- 

idition  re- 
eir  respec- 

rce  disem- 
anlight,  or 
jach  other 
3  their  re- 
it  mornhig 
.ppened  of 
I  them  to- 
rce  on  duty 

o'clock. 
t  wounded, 
party  were 

!  any  resist- 
I  of  a  shot 
ne  of  board- 
Dormick.     I 

•  pistol  was 
ing  interro- 
lapons.  The 
I  did  not 
board  of  the 


else  go  into 

of  London, 
to  his  boat, 
Imy  boat  on 
Ito  cover  Mr. 
Irpet  for  the 
lie  Caroline, 
Ly  the  water. 


I  believe  a  dog  was  also  taken  from  the  boat.     I  did  not  see  nor  am 
I  aware  that  any  other  article  was  taken  from  the  Carolhie. 

To  the  H7th  cross-interrogatory  he  says:  I  never  heard  the  Caro- 
line was  coining  from  Buiralo,  but  on  the  day  she  was  destroyed  ;  on 
the  day  before  I  heard  she  was  plying  between  Navy  Island  and  the 
American  shore.  I  cannot  remember  wlio  informed  me,  McLeod 
did  not  so  inform  me. 

To  the  38th  cross-interrogatory  he  says  :  I  never  knew  and  do  not 
remember  ever  to  have  seen  or  heard  of  Sylvanus  S.  Kigby  before 
this,  the  time  of  my  examination. 

To  the  39th  cross-interrogatory  he  says:  No  !  To  the  40th  cross- 
interrogatory  he  says:  No!  To  the  41st  cross  interrogatory  he 
says  :  1  neither  know,  nor  have  I  heard  from  him  that  he  was  on 
board  of  the  Caroline  when  she  was  attacked. 

To  the  42d  cross-interrogatory  he  says :  No ;  and  I  know  not 
where  he  is. 

To  the  43d  cross-interrogatory  he  says :  I  know  nothing  about 
him. 

To  the  44th  cross-interrogatory  he  says:  I  neither  know,  nor  have 
I  understood  from  McLeod  anything  of  the  matters  inquired  after  by 
this  interrogatory. 

To  the  45th  cross-interrogatory  he  says  :  McLeod  neither  told  me 
nor  any  person  in  my  presence  anything  respecting  the  matters  in- 
quired after  by  this  interrogatory. 

To  the  46th  cross-interrogatory  he  says  :  I  neither  know,  nor  have 
heard  McLeod  say  anything  of  the  matters  inquired  after  by  this  in- 
terrogatory. 

To  the  47th  cross-interrogatory  he  says  :  I  neither  had  nor  have 
had  any  conversation  with  McLeod,  nor  with  any  person  in  his  pres- 
ence respecting  any  matters  inquired  after  by  this  interrogatory. 

To  the  48th  cross-interrogatory  he  says  :  No. 

To  the  49th  cross-interrogatory  he  says  :  I  neither  knew  nor  have 
understood  from  McLeod,  that  he  Avas  in  any  manner  advised,  as 
mentioned  in  this  interrogatory. 

To  the  50th  cross- interrogatory  he  says:  Never! 

To  the  51st  cross-interrogatory  he  says  :  Seven  boats  were  en- 
gaged in  the  expedition,  and  all  started  from  inside  the  mouth  of  the 
Chippewa  Creek,  I  do  not  know  how  many,  or  v/hether  any  grounded 
at  Buckhorn  Island. 

To  the  52d  cross-interrogatory  he  says :  I  am  not  aware  that  any 
person  was  engaged  to  pilot  the  boats.  •  I  have  an  indistinct  recollec- 
tion of  the  person  of  the  name  mentioned  in  this  interrogatory,  re- 
siding, I  think  some  years  since,  at  or  about  Chippewa,  but  not  in 
1837,  I  believe  he  was  a  pilot,  but  no  person  of  that  name  was  to  my 
knowledge  engaged  in  the  expedition. 

To  the  53d  cross-interrogatory  he  says:  I  know  nothing  of 
the  character  of  the  ordef  or  command  mentioned  in  this  interro- 
gatory. I  was  placed  by  Sir  Allan  N.  McNab  under  the  command  of 
Captain  Drew,  and  to  him  alone  I  looked  for  orders. 

To  the  54th  cross-interrogatory  he  says :  I  did  not  see  any  armed 
force  at,  or  upon  the  wharf,  but  several  shots  were  fired  towards  us 


f.'fi 


W 


iv> 


uo 


GOULD  S    REPOttTER. 


iii 


Hi' 
i 
I 


f  ?*  I 


from  the  direction  of  the  tavern,  near  the  wharf.  I  do  not  know 
whctiier  Lieutenant  lilmsley,  or  any  other  person  was  sent  or  went 
on  shore  for  the  purpose  mentioned  in  this  interrogatory  or  any 
otiier  such  purpose. 

To  tlie  last  cross-interrogatory  he  says:  I  know  nothing  further 
than  what  I  have  already  stated  in  my  answers  to  the  foregoing  in- 
terrogatories touching  the  matter  in  question. 

EDWARD  ZEALAND. 
Sworn,  taken  and  subscribed  at  Hamilton,  Canada,  this  ISth  day  of  Sep- 
tember, IStl,  before  mo,  Skcker  Brougii,  Commissioner. 

DEPOSITION    OF    WILLTAJI    S3MUT    LIGHT. 

William  Smart  Liii;lif,  of  the  township  of  North  Oxford,  in  the  Dis- 
trict of  Brock  and  Province  of  Canada,  Esquire,  ngcd  twenty-two 
years  and  upwards,  being  produced,  sworn  and  examined  in  behalf  of 
the  defendant  in  the  title  of  these  depositions  named,  doth  depose  as 
follows,  viz. 

To  the  1st  interrogatory,  he  says:  I  have  no  personal  acquain- 
tance with  Alexander  McLeod,  he  was  once  pointed  out  to  me  in  the 
streets  of  Chippewa,  but  whether  before  or  after  the  29thT)ccember, 
1837,  I  cannot  say.     I  believe  him  to  be  a  British  subject. 

To  the  2d  interrogatory,  he  says  :  I  perfectly  recollect  the  des- 
truction of  the  Caroline.  I  was  at  Chippewa  at  the  time,  and  had 
been  thei'c  about  four  or  five  days  previous. 

To  the  3d  interrogatory,  he  says:  The  persons  who  went  to  des- 
troy the  Caroline,  embarked  at  the  mouth  of  the  Chippewa  Creek  near 
some  willow  trees.  I  had  been  appointed  to  Mr.  Elmsley's  boat  pre- 
vious to  my  setting  out,  and  entered  her  as  soon  as  I  arrived,  and  re- 
mained on  board  the  boat  until  the  expedition  started.  I  cannot 
speak  positively  as  to  the  persons  who  went  on  that  expedition  ex- 
cept such  as  went  in  the  same  boat  with  myself. 

To  the  4th  interrogatory,  he  says  :  I  do  not  know  where  the  said 
Alexander  McLeod  was  when  the  boats  put  off.  I  know  he  was  not 
in  my  boat. 

To  the  5th  interrogatory,  he  says :  I  do  not  know  where  the  said 
Alexander  McLeod  was,  he  was  not  in  my  presence. 

To  the  6th  interrogatory,  he  says:  When  the  boats  pushed  off  from 
the  Canada  shore  on  the  expedition  to  destroy  the  Caroline,  they 
pulled  towards  her.  I  was  in  one  of  the  boats,  which  boat  Mr.  Elms- 
ley  commanded. 

To  the  7th  interrogatory,*  he  says  :  I  saw  all  the  persons  in  the 
boat  in  which  I  was  on  my  way  to  Schlosser.  Alexander  McLeod 
was  not  one  of  them,  neither  did  I  see  him  on  my  way  from  the  Can- 
ada shore  to  Schlosser. 

To  the  8th  interrogatory,  he  says  :  I  saw  the  Caroline  on  the  night 
of  her  destruction.  I  boarded  her  on  the  §tarboard  bow,  and  was  the 
first  on  board  from  my  boat.  I  left  her  immediately  after  the  other 
assailants.  The  said  Alexander  McLeod  was  not  among  the  assail- 
ants from  the  first  attack  upon  her  till  her  final  destruction,  to  the 
best  of  my  knowledge  and  belief. 

To  the  9th  interrogatory,  he  says  :  I  saw  no  one  killed  on  board 


I  not  know 
!nt  or  went 
ory  or  any 

linfr  further 
»rejroin<T  in- 

hday  ofSep- 
tnissioncr. 


I,  in  the  Dis- 
l  twenty-two 
1  in  behalf  of 
th  depose  as 

nal    acqnain- 
to  me  in  the 
h  December, 
ft. 

ect  the  des- 
ime,  and  had 

went  to  des- 
ira  Creek  near 
;y's  boat  pre- 
rived,  and  re- 
d.  I  cannot 
xpcdition  ex- 

here  the  said 
kv  he  was  not 

here  the  said 

led  off  from 

roline,  they 

lat  Mr.  Elras- 

rsons  in  the 
der  McLeod 
rom  the  Can- 
on the  night 
and  was  the 
ter  the  other 
g  the  assail- 
iction,  to  the 

ed  on  board 


JICLEOU  a    TIIIAL. 


Ul 


the  Caroline.  I  saw  a  man  in  tiic  after  cabin  desperately  wo\inded. 
1  was  ordered  by  Captain  Drew  to  convey  him  on  shore.  I  took 
iiini  to  the  ganifway,  and  believe  he  either  walked  or  was  carried 
on  shore,  but  cannot  say  posiiively  as  1  did  not  see  him. 

To  the  lOlh  interrogatory,  he  says  :  1  did  not  see  the  whole  of  the 
men  who  had  been  engaged  in  the  destruction  of  the  Caroline,  on 
liiy  return  from  Schlosser  to  the  Canada  shore.  1  did  not  sec  Al- 
exander McLeod  among  them. 

To  the  Hill  intcnugatory,  he  says:  I  believe  there  were  from 
HC'ven  to  nine  boats  started.  1  saw  but  four  at  the  Caroline.  No 
boat  returned  in  company  with  the  boat  1  was  in. 

To  the  12th  interrogatory,  he  says:  I  know  Sir  Allan  jMcNab,  I 
did  not  see  him  when  the  expedition  started  in  pursuit  of  the  Caro- 
line. I  do  not  know  by  whose  command  the  expedition  was  under- 
taken.    I  heard  no  directions  given  with  reference  to  the  expedition. 

To  the  thirteenth  interrogatory,  he  says:  Captain  Drew  was  in 
command  of  the  expedition.  I  cannot  say  by  whose  orders  he  un- 
dertook the  expedition. 

To  the  last  interrogatory,  he  says :  I  know  nothing  more  in  an- 
swer to  this  interrogatory  than  I  have  already  stated  in  reply  to  the 
foregoing  interrogatories. 

W.  S.  LIGHT. 
Taken  and  sworn  before  me,  this  seventeenth  day  of  September,  in 

the  year  of  our  Lord  one  thousand  eight  hundred  and  forty-one, 

at  the  town  of  Woodstock,  in  the  district  of  Brock,  in  Canada. 

J.  H.  Price,  Commissioner. 

ANSWERS    TO    THE  INTERROGATORIES  BY  WAV    OF    CROSS-EXAMINATION. 

The  said  William  Smart  Light,  to  the  1st  cross-interrogatory,  says: 
I  reside  in  the  township  of  Oxford,  in  the  Northern  Division.  I  have 
resided  there  nearly  seven  years.  I  am  a  native  of  England,  and 
have  resided  in  Canada  for  ten  years.  I  am  twenty-two  years  of  age. 
[  am  a  captain  of  the  2d  Oxford  regiment  of  militia,  and  superintend 
the  management  of  my  father's  property. 

To  the  2d  cross-interrogatory,  he  says  :  I  was  acting  as  Aide-de- 
Camp  to  Captain  Drew  in  December,  1837.  I  was  not  in  command  of 
any  vessel,  nor  was  I  attached  to  any  vessel. 

To  the  3d  cross-interrogatory,  he  says :  I  do  not  recollect  having 
seen  Alexander  McLeod  previously  to  the  destruction  of  the  Caro- 
line. 

To  the  4th  cross-interrogatory,  he  says :  I  never  did  converse 
with  Alexander  McLeod  or  heard  him  converse  on  the  subject  of  the 
destruction  of  the  Caroline,  or  any  other  subject. 

To  the  5th  cross-interrogatory,  he  says  :  I  know  nothing  of  the 
matters  inquired  after  in  this  cross-interrogatory. 

To  the  6th  cross-interrogatory,  he  says :  I  never  went  with  the 
said  Alexander  McLeod  round  Navy  Island. 

To  the  7th  cross-interrogatory,  he  says :  I  know  nothing  of  the 
matters  inquired  after  in  this  cross-interrogatory. 

To  the  8th  cross-interrogatory,  he  says  :  Alexander  McLeod  never 
spoke  to  me  on  the  subject  of  cutting  out  and  destroying  the  Caroline. 


't;" 


w. 


gottld's  REponrnn. 


M 


no  knowledge  of 


To  the  0th  cross-intorronratory,  he  sjiys  :  The  plnn  for  destroyinfj 
the  Ciiroliiie  never  occnrred  to  me,  it  wjis  first  ('(iiinniinicated  to  me 
after  the  boats  had  started.  I  did  not  conimimioate  it  to  Alexander 
iVfcLcod,  he  was  not  present  when  it  was  coiiiiiumicated  to  me,  and 
to  the  hest  of  my  Knowled<j;e  he  knew  nothintr  ahoiit  it. 

To  the  lUth  cross-interrogatory,  he  says  1  had 
the  Caroline  })cinfr  at  Schlosser  nntil  the  boat  in  which  I  was,  was 
within  a  few  yards  of  her.  Alexander  McLeod  never  informed  me. 
I  had  nothing  to  do  with  any  of  the  preparations  for  the  attack.  Af- 
ter the  return  of  the  expedition  I  went  directly  to  my  own  quar- 
ters. 

To  the  11th  cross-ihterrogatory  he  says:  I  was  at  Davis's  tavern 
the  day  after  the  burning  of  the  Caroline.  I  did  not  see  Alexander 
AIcLeod  there.  I  was  there  in  the  evening.  I  have  no  recollection 
of  having  seen  Alexander  McLeod  at  or  near  Davis's  tavern  on  the 
Monday  or  any  other  day  after  the  burning  of  the  Caroline  nor  did  I 
ever  converse  with  him  on  the  subject  of  burning  that  vessel. 

To  the  r2tli  cross-interrogatory  he  says :  I  was  present  at  the 
burning  of  the  steamboat  Caroline,  at  Schlosser  on  the  29th  of  De- 
cember, 1837.  I  was  present  at  the  embarkation  of  the  expedition 
at  Chippewa,  but  cannot  say  how  many  persons  were  present  at  or 
near  the  place  from  whence  the  boats  started. 

To  the  13th  cross-interrogatory  he  says:  I  cannot  say  how  many 
persons  embarked  in  the  enterprize.  I  did  not  know  all  the  persons 
who  entered  the  boats.  I  was  one  of  them.  There  were  eight  per- 
sons in  the  same  boat  with  myself.  I  was  on  board  the  Caroline,  and 
assisted  in  destroying  her. 

To  the  14th  cross-interrogatory  he  says :  The  boats  used  were 
such  as  usually  belong  to  schooners.  I  cannot  say  how  many  per- 
sons were  in  each  boat.  I  think  the  boats  were  all  nearly  of  the 
same  size  and  description.     There  were  seven  or  nine  boats. 

To  the  15th  cross-interrogatory  he  says :  I  did  not  know  all 
who  embarked  in  the  expedition.  I  did  not  see  or  recognize  the 
face  of  each  one  of  them. 

To  the  16th  cross-interrogatory  he  says :  I  did  know  them  all.  I 
had  raised  the  boat's  crew  for  Mr.  Elmsley.  I  spoke  to  each,  but 
having  no  personal  acquaintance  with  them,  I  cannot  say  that  I  re- 
cognized each  one.  Captain  Drew  commanded  the  expedition.  Mr. 
Elmsley  commanded  the  boat  in  which  1  was. 

To  the  17th  cross-interrogatory  he  says  :  I  did  not  return  in  the 
same  boat  in  which  I  embarked,  nor  did  the  same  persons  return 
with  me. 

To  the  18tli  cross-interrogatory  he  says :  All  the  boats  did  not 
reach  the  Caroline.  I  cannot  say  how  many  failed.  Captain  Bat- 
tersy  commanded  one,  Mr.  Hector  commanded  the  other.  I  do  not 
know  what  became  of  them.  All  the  boats  that  reached  the  Caroline 
arrived  about  the  same  time.     I  think  Captain  Drew's  was  the  first. 

To  the  19th  cross-interrogatory  he  says:  To  my  knowledge  there 
was  no  man  of  the  name  of  McLeod  in  the  expedition. 

To  the  20th  cross-interrogatory  he  says:  The  expedition  embark- 
ed from  the  beach. 


MCLFOD  S   TRIAL. 


HH 


To  tlie  ^Ist  prnss-intcrronrntory  he  says:  All  thn  bonfa  wcro  noiu 
trtjrcthcr  ami  nil  startcil  about  tlic  suiiic  tiino, 

'['o  the  'i'id  cross-iiitorroiratory  be  says;  The  boats  did  not  nil  re- 
turn at  tlir  same  time,  nor  did  tlicy  all  dis(>inbark  jil  the  same  time, 
'['lie  boat  1  was  in  disptnhaikfd  at  the  place  from  wliointc  we  started. 
I  (lid  not  soe  and  recognize  all  the  persons  1  saw  embark.  I  return- 
ed in  another  boat. 

To  the  'I'.kd  cross-interrorratory  he  says:  The  force  employed 
consisted  of  vohintecrs.  There  wer(;  some  <;oiitlemen  who  had  pre- 
viously been  in  the  iloyid  Navy  and  Army.  The  men  volunteered. 
The  force  marched  up  in  n  body,  but  the  men  composing  it  entered 
such  boats  as  they  ch6se. 

To  the  21tli  cross-interrojratory  he  says:  Many  of  the  parties 
composing  the  force  were  mustered  at  the  quarters  of  the  Naval 
Hri^rade  and  furnished  with  a  pistol,  cutlass  and  two  cartridges.  The 
force  was  not  displayed  or  paraded  in  military  form  on  its  disembar- 
kation. 

To  the  25th  cross-interroffatory  he  says:  The  persons  composing 
the  expedition  were  dressed  in  their  ordinary  clothing.  Those  who 
could  procure  it  had  a  red  badge  round  their  arm. 

To  the  2()th  cross-interrogatory  he  says:  The  party  were  armed 
with  pistols,  cutlasses  and  sabres,  which  were  obtained  from  the 
(juarters  of  the  Naval  Brigade  and  from  the  Provincial  Cavalry. 

To  the  27th  cross-interrogatory  he  says:  I  believe  the  force  dis- 
persed. 

To  the  28th  cross-interrogatory  he  says :  I  should  think  between 
one  and  two  o'clock  in  the  morning.  The  night  was  clear,  but  I 
cannot  say  whether  there  was  any  moon.  The  force,  I  think,  dis- 
persed to  their  quarters.  The  whole  party  were  not  together  that 
morning  at  sunrise.  I  have  never  seen  that  force  together  since.  I 
have  since  seen  some  of  the  parties  armed  and  equipped  as  they  were 
that  night  on  board  of  a  gun  boat,  but  who  they  were  I  cannot  say. 

To  the  29th  cross-interrogatory  he  says:  I  cannot  now  recollect 
at  what  hour  the  expedition  embarked. 

To  the  30th  cross-interrogatory  he  says :  I  was  not  wounded. 
Some  of  the  assailing  party  were  wounded  in  the  attack  upon  the 
Cai-olinc.     No  one  was  killed. 

To  the  31st  cross-interrogatory  he  says:  Resistance  was  made  by 
the  crew  or  by  persons  attached  to  the  Caroline.  They  had  weapons, 
pistols  and  swords.  I  saw  also  one  gun  fired  by  the  sentry.  The 
Caroline,  I  believe,  was  not  armed.  I  cannot  say  that  there  were  any 
military  stores,  simunition,  provision  or  munitions  of  war  of  any  kind 
or  description  found  on  board  the  Caroline. 

To  the  32d  cross-interrogatory  he  says :  They  discharged  both 
guns  and  pistols,  and  they  had  swords  on  board.  There  were  no 
cannon,  fire-arms,  military  stores,  amunition,  provision  or  munition 
of  war  of  any  kind  or  description  found  on  board  the  Caroline  with 
the  exception  of  such  as  appeared  to  have  been  used  in  the  conflict 
and  which  lay  scattered  about  the  deck. 

To  the  33d  cross-interrogatory  he  says :  I  saw  only  one  wounded 
as  I  have  before  stated.    I  saw  no  one  killed.     I  wounded  no  one, 


r 


\m 


i 


\ 


S" 

I, 


■  1  ■  !i  I 


-'I.; 


W 


',  (■ 


■m 


f  ,!; 


.       \ 


"'  « 


■  C 


141. 


GOWLU  .S  HKroilTER. 


r) 


i      :,._:*:t 


nor  (1!(1  I  Kill  any  our.  I  (irod  ii  pistol.  I  ilid  not  strike  with  sword, 
pikf  or  Dtlicr  wt'npoii. 

To  l!n!  Illtli  i;ross-iiitt'rr(»(riUory  lie  says:  I  am  pcrlVctly  coniidciit 
thai  no  person  was  on  board  tlic  Carolnic  wIhmi  she;  was«'nt  Nxtsi,'  and 
sent  over  tlic  I'alls,  Cor  wlicn  1  leli  lu-r  1  had  to  run  frtMn  the  alter 
••ahin  to  the  how  wilh  niy  licad  down  to  escape  the  smoke  and  llames 
wliieh  were  hursliiiif  from  helow. 

'To  tin!  !{r)ih  eross-intcrrcc^riitory  he  says:  I  went  on  shore  at 
Scidosser.  I  did  not  ^it  into  the  warelntnse  near  the  wharf  nor  did 
I  si!C!  any  of  the  party  jjo  into  the  warcdnnisc. 

To  the  ."Mth  eross-interroifatory  he  says  :  I  did  take  away  a  mat- 
trass  for  the  aeeom.iiodation  (»f  -Mr.  .MeCormick,  who  was  severely 
woMinled,  ami  I  also  took  away  a  sword  which  was  lyinir  on  the 
deck.     1  know  of  no  olln-r  articles  h«vin<f  been  taken  from  her. 

To  the  .'Hth  cross-interrojjatory  he  says  :  I  never  heard  of  the 
steamboat  Carcdine  coming  down  from  Uuirulo  to  Schlosscr  from 
Alexander  .McLeod  or  any  other  person. 

To  the  USth  cross-inlcrrogatory  he  says:  I  never  heafd  of  such  a 
person  as  Sylvnnus  S.  Rigby. 

To  the  3!)th  cross-interrogatory  lie  says  :  No. 

To  the  iOth  cross-interrogatory  he  says  :  No. 

To  the  'list  cross-interrogatory  he  says:  i  have  no  knowledge  of 
his  ever  having  been  on  board  the  Caroline. 

To  the  lid  cross-interrogatory  he  says  :  I  know  nothing  of  the 
matters  in(|uired  after  by  ihi*  cross  interrogatory. 

To  the  I'M  cross-interrogatory  he  says  :  1  never  saw  him. 

To  the  lull  cross-interrogatory  he  says:  I  know  nothing  of  the 
matters  in(|nircd  after  by  this  cross  interrogatory. 

To  the  loth  cross-interrogatory  he  say;?:  I  never  conversed  with 
or  heard  Alexander  McLeod  converse  on  any  snbject. 

To  the  'tGth  cross-interrogatory  he  says :  I  know  nothing  of  the 
matters  inquired  after  by  this  cross  interrogatory. 

To  the  4'7tli  cross-interrogatory  he  says:  I  never  had  any  conver- 
sation with  Alexander  McLeod  on  the  subject  of  the  destruction  of 
the  Caroline,  nor  had  he  with  me  the  day  before  she  was  destroyed 
or  on  any  other  day,  nor  had  I  with  any  other  person  in  his  presence, 
nor  had  he  with  any  other  person  in  my  presence  on  the  subject 
aforesaid. 

To  the  4Hih  cross-interrogatory  he  says  :  No,  I  did  not. 

To  the  49th  cross-interrogatory  he  says:  Not  to  my  knowledge. 

To  the  r)Oth  cross-interrogatory  he  says :  I  never  did. 

To  the  olst  cross-interrogatory  he  says  :  Seven  or  nine — I  believe 
seven  or  nine — the  same  number.  I  cannot  say  how  many  grounded 
on  Buckhorn  Island. 

To  the  5'2d  cross-interrogatory  he  says :  I  know  nothing  of  the 
matters  inquired  after  by  this  cross  interrogatory. 

To  the  53d  cross-interrogatory  he  says :  Having  answered  the 
twelfth  and  thirteenth  direct  interrogatories  in  the  negative,  I  can 
give  no  further  answer  to  this  cross  interrogatory. 

To  the  bith  cross-interrogatory  he  says  :  lam  not  aware  that  there 
was  any  armed  force  stationed  on  the  wharf  where  the  Caroline  was 


# 


The 


til  sword, 

roiirKlcut 

looso  iiinl 

tlic  llltrr 

lid  liamcH 

sliorc    at 
rf  nor  did 

■ay  ii  mat- 
He vc rely 
ig  on  tlio 
1  lior. 
rd  of  tlio 
sscr  from 

of  such  a 


wledgc  of 

ing  of  the 

in. 

injj  of  the 

rscd  with 

ing  of  the 

ly  conver- 
Iniclion  of 
destroyed 
presence, 
|ie  subject 

)\vledge. 

-I  believe 
[grounded 

Ing  of  the 

rcrcd   the 
Ive,   I  can 

Jthat  there 
loline  was 


.1 


MCLKOD'b   THMI-. 


146 


lyiiij^.  I  wan  hrnd  upon  from  the  shoro  while  cnntinp  of]'  tlio  rliain 
by  which  she  wum  rno(,red.  1  reeollrrt  nothiii)?  of  the  other  iiiullerB 
iii(|iiirod  lifter  by  this  cross  iiiterrogutory. 

'I'o  the  Inst  cross-infcrroLTiitory   he  siiyia;  I  know  of  no  mutter  or 
thiiiir,  nor  have  I  heard,   nor  can  [   say  anything   otlier  than   I    have 
already  stated   toiichiiio    the    matters   in  (|iiesfion    in  this  cause   that   . 
may  tend  to  the  benclit  and  advantage  of  the  said  people. 

VV.  S.  LICWIT. 
Taken  and  sworn  before  me  this  Beventcenth   day  of  September, 
in  the  year  of  our  Lord  (me  thousand  eight  hundred  and  forty- 
one,  at   the  town  of  Woodstock,  in  the  district  of  IJrock,   in 
Canada. 

J.  H.  Prick,  Commissioner. 

During  the  reading  of  the  foregoing  depositions  the  Attorney  C!en- 
era!  objected  to  various  portions,  so  as  to  bring  the  testimony  within 
the  rule  laid  down,  and  to  make  it  applicable  solely  to  the  indict- 
ment for  the  murder  of  Durfee.  The  various  points  were  warmly 
contested  by  counsel  on  both  sides. 

The  testimony  of  John  Harris  was  objected  to  by  the  Attorney 
General  on  the  ground  that  ho  had  not  signed  his  testimony. 

Mr.  Gardner  intimated  that  the  testimony  was  not  signed  at  the 
time  because  it  was  necessary  to  have  it  copied. 

The  testimony  itself  said  "taken  and  sworn"  before  me,  &c. 

The  Attornev  General  withdrew  the  objection. 

FIFTH   DAY. 

The  Court  sat  last  night  until  near  ten  o'clock,  and  Judge  Gridley 
appeared  to  be  as  much  disposed  to  continue  sitting  as  he  had  been 
at  any  period  of  the  trial ;  but  the  Jurors  exhibited  symptoms  of 
drowsiness,  and  the  appeal  was  irresistible.  One  juror  had  tied  his  ' 
handkerchief  about  his  head,  and  appAred  to  be  enjoying  a  sound 
sleep  while  the  depositions  were  being  read  ;  others  were  resting  their 
weary  heads  on  the  front  of  the  jury  box,  and  altogether  they  looked 
more  like  twelve  convicts,  broken  down  in  mind  and  body,  under  the 
dreadful  sentience  which  dooms  to  an  ignominious  death,  than  a  jury 
sitting  to  decide  on  the  fate  of  another.  The  Court  accordingly  was  ■ 
adjourned  until  a  quarter  to  eight  the  next  morning,  at  which  time 
Judge  GiiiDLEY  took  his  seat  on  the  bench.  He  was,  as  usual,  the 
first  man  in  Court,  and  wit'^  all  the  freshness  of  joyous  youth  j  he 
never  fails,  nor  does  he  betray  any  fatigue  under  his  arduous  duties. 

One  objection  made  by  the  Attorney  General  to  the  admissibility 
of  the  depositions  taken  under  commission,  was  made  this  morning 
to  that  of  Mr.  S.  Light,  on  the  ground  that  the  counsel  for  tho  peo- 
ple was  not  present  at  the  examination.  It  occurred  thus : — com- 
missions were  issued  and  days  were  appointed  for  the  examinations, 
and  counsel  for  the  people  and  the  prisoner  were  in  attendance  at  the 
places  agreed  upon,  in  Canada:  but  it  was  found  necessary  that  the 
commissioners  should  separate  for  the  examination  of  witnesses,  and 
as  there  was  but  one  counsel  there  for  the  people,  he  could,  of  course, 
only  attend  in  one  place  at  a  time,  and  the  depositions  were  taken  by  " 

19 


1 


1  * 

i,     I 


i'l  t 


'  'I 

A 


J.   " 


■I! 


>V4 


f 


_i/- 


'' 

-ii 

'i*l 

,'  ■ 

■11 

to 

m 

146 


GOULD'S   KEPOUTER. 


1: 


-If 


the  commissiioneTs  on  the  interrogatories  previously  framed  by  the 
counsel  for  the  people  and  the  prisoner. 

Judge  Gridley  said  he  saw  no  impropriety  in  the  course  taken. 
The  commissioners  were  armed  with  full  powers  to  take  the  examin- 
ations, and  counsel  had  had  the  opportunity  to  frame  the  inter- 
rogations previously. 

Some  explanations  were  made  between  the  Attorney  General  and 
Mr.  Spencer,  and  the  reading  was  resumed. 

Previous  to  the  reading  of  the  following  deposition  of  Mr.  Armour, 
Mr.  Hall  objected  to  it — not  desiring  to  set  it  aside  altogether — that 
the  name  of  this  witness  was  not  included  in  the  list  of  witnesses  to 
be  examined  by  commission  ;  consequently  the  prosecution  'had  no 
opportunity  of  framing  cross  interrogatories,  such  as  might  be  pe- 
culiarly adapted  to  the  knowledge,  circumstances  or  character  of  the 
-..itness. 

Mr.  Spencer  explained — it  was  true  this  witness  was  not  originally 
in  the  list  mentioned  ;  but  he  had  been  substituted  at  great  trouble 
for  another  in  the  list,  who  refused  to  be  examined,  and  whose  knowl- 
edge was  supposed  to  be  similar  to  that  of  Mr.  Armour. 

Mr.  Hall  did  not  press  any  objection  to  the  reading  of  the  deposi- 
tion, but  wished  the  jury  to  understand  the  particular  circumstance 
that  attended  it.     The  deposition  was  then  read. 

Deposition  of  Robert  Armour. 

Robert  Armour,  of  the  town  of  Coburg,  in  the  New  Castle  District, 
in  the  Province  of  Canada,  Esquire,  aged  twenty-three  years,  maketh 
oath  and,  to  the  first  interrogatory,  he  says :  I  have  known  Alexan- 
der McLeod  from  about  the  beginning  of  the  month  of  December, 
1837.  I  had  seen  Alexander  McLeod  once  or  twice  before  the  29th 
day  of  December,  1837.  I  only  knew  him  by  sight  at  that  time.  I 
had  no  acquaintance  with  him  other  than  as  I  have  just  stated.  I 
believe  him  to  be  a  British  Object. 

To  the  2nd  interrogatory,  he  says :  I  do  remember  the  time  of  the 
destruction  of  the  Caroline.  I  was  in  Chippewa  about  that  time.  I 
had  been  there  for  about  twelve  days  before  the  destruction  of  the 
Caroline. 

To  the  3d  interrogatory,  he  says :  All  the  boats  were  in  Chippewa 
creek.  Some  of  the  party  that  were  in  the  boats  afterwards  landed 
and  tracked  the  boats  along  the  shore  a  few  hundred  yards,  until  we 
came  opposite  to  Schlosser.  We  may  perhaps  have  stood  upon  the 
beach  at  the  Chippewa  creek  about  five  minutes  or  so,  before  we  em- 
barked. I  went  into  one  of  the  boats  that  were  lying  in  the  Chippe- 
wa creek.  I  landed  to  help  to  track  the  boat  that  I  was  attached  to, 
along  the  shore,  as  I  have  before  stated.  And  when  the  boat  had 
been  tracked  a  sufficient  distance,  I  got  into  it  again.  I  was  with  the 
party  that  went  upon  the  expedition,  and  was  one  of  them. 

To  the  4th  interrogatory,  he  says :  I  do  not  know  where  Alexan- 
der McLeod  was,  but  I  know  he  was  not  in  the  boat  that  I  was  in. 

To  the  5th  interrogatory,  he  says :  I  do  noi  know  wheie  Alexan- 
der McLeod  was,  and  I  do  not  think  he  was  upon  the  beach  at  all 


■e,- 


MCLEOD  S   TRIAL. 


W7 


ed  by  the 

rse  taken. 

le  examin- 

the  inter- 

eneral  and 

r.  Armour, 
ther — that 
itnesses  to 
ion  'had  no 
ight  be  pc- 
icter  of  the 

t  originally 
:eat  trouble 
lose  knowl- 

the  deposi- 
rcurastance 


3tle  District, 
jars,  maketh 
)\vu  Alexan- 
:  December, 
ore  the  29th 
hat  time.  I 
it  stated.     I 

1  time  of  the 

at  time.     I 

ction  of  the 

In  Chippewa 
tards  landed 
l-ds,  until  we 
lod  upon  the 
Vore  we  em- 
the  Chippe- 
[attached  to, 
le  boat  had 
iras  with  the 
|m. 

Iiere  Alexan- 
1 1  was  in. 
(eic  Alcxun- 
Ibeach  at  all 


during  the  time  of  embarkation ;  at  any  rate  he  did  not  come  under 
my  view. 

To  the  6th  interrogatory,  he  says :  I  went  in  Capt.  Elmsley's  boat, 
and  he  commanded  it. 

To  the  7th  interrogatory,  he  says :  I  saw  all  the  persons  that  were 
in  the  boat  I  was  in.  Alexander  McLeod  was  not  in  the  boat  with 
me.     I  did  not  see  Alexander  McLeod  at  all  that  night. 

To  the  8th  interrogatory,  he  says :  I  saw  the  Caroline  that  night. 
I  was  on  board  of  her,  and  over  nearly  all  her  deck.  I  boarded 
about  the  same  time  as  the  others.  I  was  one  of  the  last,  or  among 
the  last  that  left  her.  I  did  not  see  Alexander  McLeod  at  all  that 
night,  and  do  not  think  he  was  one  of  the  assailants. 

To  the  9th  interrogatory,  he  says :  1  know  nothing  of  the  malter.s 
contained  in  this  interrogatory. 

To  the  10th  interrogatory,  he  says :  I  saw  the  greater  part  of  the 
men  that  had  been  engaged  in  the  destruction  of  the  Caroline  after 
they  landed.  Alexander  McLeod  was  not  one,  or  among  those  that  I 
saw,  nor  did  I  see  him  that  night. 

To  the  11th  interrogatory,  he  says:  Seven  started,  five  crossed 
the  river,  two  of  which  remained  in  the  stream,  and  the  other  three 
attacked  her.     They  came  back,  I  believe,  one  after  another. 

To  the  12th  interrogatory,  he  says :  I  do  know  Sir  Allan  N.  McNab. 
I  think  he  was  on  the  bank  opposite  to  Schlosser  at  the  time  the 
expedition  started.  I  think  the  expedition  was  undertaken  at  the 
suggestion  or  command  of  Sir  Allan  N.  McNab.  I  did  not  hear  him 
give  any  directions. 

To  the  13th  interrogatory,  he  says:  Captain  Drew  was  in  com- 
mand of  the  expedition.  He  commanded  it,  I  believe,  by  the  order 
or  wish  of  Sir  Allan  N.  McNab. 

To  the  last  interrogatory,  he  says :  I  know  of  nothing  further  that 
can  tend  to  the  benefit  of  the  said  Alexander  McLeod,  than  what  I 
have  before  stated  to  the  foregoing  interrogatories. 

R.  ARMOUR. 

Sworn,  taken  and  subscribed  at  the  city  of  Toronto,  in  the  Home 
District,  in  Canada,  this day  of  September,  IS-il,  before  us, 

SeCKER  BrOUGII,  i  ri  •      • 

A         inT  I  Commissioners. 

Adam  Wilson,    J 

Answers  to  the  interrogatories  by  way  of  cross-examination  pro- 
posed to  Robert  Armour : 

To  the  1st  cross-interrogatory,  he  says :  I  reside  in  Cobourg.  1 
have  been  there  for  about  twelve  months  past.  I  am  not  a  native  of 
Canada.  I  am  a  native  of  Scotland.  I  have  resided  in  Canada  be- 
tween twenty-one  and  twenty-two  years.  I  am  twenty-three  years 
of  age  past,  and  my  profession  is  that  of  an  attorney  at  law. 

To  the  2nd  cross-interrogatory,  he  says  :  I  was  a  private.  I  was 
attached  to  a  vessel  during  part  of  the  time.  I  was  in  Chippewa. 
"  The  Queen"  was  the  name  of  her.  She  was  a  large  schooner,  and 
was  armed.  I  was  attached  to  her  as  a  private.  I  was  also  attached 
to  the  land  force  a  part  of  the  time.  I  was  in  Chippewa  aforesaid, 
and  served  as  a  private. 


^:  if  iiif 

'■wm 


1.  ''f  . 


'W-.'i 


ill} 


**\A 


Pj, 


^  '-n 


.w.,f 


148 


gottld's  reporter. 


^111 


m 


To  the  3d  cross-interrogatory,  he  says :  I  did  not  see  Alexander 
McLeod  the  week  preceding  the  burning  of  the  Caroline,  to  my 
recollection. 

To  the  4th  cross-interrogatory,  he  says  :  I  did  not. 

To  the  5th  cross-interrogatory,  he  says :  I  did  not. 

To  the  6th  cross-interrogatory,  he  says :  1  did  not. 

To  the  7th  cross-interrogatory,  he  says :  I  know  nothing  of  the 
matters  contained  in  this  interrogatory. 

To  the  8th  cross-interrogatory,  he  says :  He  did  not. 

To  the  9th  cross-interrogatory,  he  says  :  I  knew  nothing  of  the  in- 
tended destruction  of  the  Caroline  until  it  was  communicated  to  me 
about  two  hours  before  we  started  for  that  purpose.  I  did  not  com- 
municate it  to  McLeod,  and  he  was  not  present  when  it  was  commu- 
nicated to  me,  and  I  do  not  know  whether  McLeod  knew  of  it  or 
not. 

To  the  10th  cross-interrogatory,  he  says :  I  did  see  the  Caroline 
plying  between  Schlosser  and  Navy  Island,  a  day  or  two  before  she 
was  burned.  McLeod  did  not  inform  me  of  it.  We  commenced 
our  preparations  for  an  attack  upon  her  about  an  hour  before  we 
started.  After  the  return  of  the  expedition,  I  returned  to  my  quar- 
ters in  Chippewa. 

To  the  11th  cross-interrogatory,  he  says:  I  do  not  remember 
whether  I  was  in  Davis's  Inn  at  Chippewa  on  the  day  after  the  burning 
of  the  Caroline  or  not ;  at  any  rate  I  did  not  see  McLeod  there,  and 
consequently  did  not  converse  with  him.  Nor  did  I  see  McLeod  on 
the  Monday,  or  on  any  other  day  after  the  burning  of  the  Caroline,  at 
or  near  Davis's  tavern. 

To  the  12th  cross-interrogatory,  he  says :  I  was  present  at  the 
burning  of  the  Caroline  at  the  time  mentioned  in  this  interrogatory, 
and  was  concerned  in  it  as  one  of  the  attacking  party.  There  were 
then  from  one  to  two  hundred  persons  standing  on  the  shore  when 
the  boats  started. 

To  the  13th  cross-interrogatory,  he  says :  There  were  about  sixty 
persons  that  embarked  in  the  expedition — I  knew  about  half  the  num- 
ber of  these  persons.  I  was  one  of  the  party.  Nine  altogether 
were  in  the  boat  that  I  was  in.  I  was  on  the  Caroline,  and  did  all  in 
my  power  to  aid  in  her  destruction. 

To  the  14th  cross-interrogatory,  he  says :  Row  boats,  such  as 
schooners  use  for  jolly  boats :  there  were  nine  persons  in  each  boat. 
The  boats  were  nearly  all  of  the  same  size  and  description.  There 
were  seven  boats. 

To  the  15th  cross-interrogatory,  he  says :  I  did  not  know  all  the 
persons  that  went  on  the  expedition,  though  I  did  know  about  one- 
half  of  them.  I  did  see  most  of  the  faces  of  those  that  were  on 
the  expedition,  and  I  recognised  a  great  part  of  them. 

To  the  16th  cross-interrogatory,  he  says :  I  knew  all  those  that 
were  in  the  same  boat  with  me  but  two,  and  those  two  were  entire 
strangers  to  me.  I  think  I  spoke  to  all  those  in  the  boat  that  I  was 
acquainted  with  ;  and  I  think  I  observed  the  faces  of  all  that  were  in 
the  boat  with  me.  Capt.  Drew  commanded  the  expedition,  and  Capt. 
Elmsley  commanded  the  boat  I  was  in. 


^14    «!l*ff> 


^-' 


MCLEOD'S    TRIAL. 


149 


Alexander 
ine,  to  my 


ing  of  the 


ig  of  the  in- 
jated  to  me 
id  not  com- 
vas  commu- 
lew  of  it  or 

he  Caroline 
>  before  she 
commenced 
r  before  we 
to  my  quar- 

t  remember 
f  the  burning 
)d  there,  and 
s  McLeod  on 
J  Caroline,  at 

resent  at  the 

titerrogatory, 

There  were 

shore  when 

e  about  sixty 
half  the  num- 
altogether 
md  did  all  in 

lats,  such  as 
in  each  boat, 
tion.     There 

mow  all  the 
about  one- 
lat  were  on 

111  those  that 
were  entire 
|»at  that  I  was 
1  that  were  in 
Ion,  and  Capt. 


person 


To  the  17th  cross-interrogatory,  he  says  :  I  did  return  in  the  same 
boat  in  which  I  embarked,  and  I  think  besides  those  that  embarked  with 
us,  one  other  person  returned  with  us  from  the  expedition. 

To  the  18th  cross-interrogatory,  he  says:  Only  three  of  the  boats 
that  set  out  for  the  Caroline  reached  her.  I  do  not  know  who  com- 
manded the  boats  which  did  not  reach  her.  Two  of  them  lay  out  in 
the  stream,  and  the  other  two  lost  theit  course  altogether.  The 
boats  that  reached  the  Caroline  arrived  at  nearly  the  same  time.  I 
do  not  know  which  arrived  first. 

To  the   19th  cross-interrogatory,  he  says :  There  was  no 
in  the  expedition  of  the  name  of  McLeod,  to  my  knowledge. 

To  the  20th  cross-interrogatory,  he  says :  There  was  no  wharf  or 
pier  where  the  boats  were  lying ;  they  embarked  from  the  Chippewa 
beach. 

To  the  21st  cross-interrogatory,  he  says;  The  boats  all  lay  at  the 
same  landing  place.     They  started  at  nearly  the  same  time. 

To  the  22d  cross-interrogatory,  he  says :  The  boats  did  not  all  re- 
turn at  the  same  time,  and  the  crews  of  the  different  boats  disem- 
barked as  they  arrived,  and  I  believe  about  the  same  place  where 
they  embarked  from.  I  did  not  see  all  those  return  that  went  on  the 
expedition,  but  I  saw  and  recognized  several  of  them. 

To  the  23d  cross-in. (.-i  ^gatory,  he  says:  The  men  that  embarked 
on  the  expedition  wer^  .  ■  \  volunteers.  Some  of  them  had  been 
in  the  Royal  Navy,  'j'  ,  -.lat  went  volunteered  to  go,  and  came 
down  to  the  boats  in  a  uouy. 

To  the  24th  cross-interrogatory,  he  says :  It  was  not. 

To  the  25th  cross-interrogatory,  he  says :  They  were  all  dressed 
in  their  common  every-day  clothes.  I  cannot  describe  particularly 
the  different  articles  of  their  dress. 

To  the  26th  cross-interrogatory,  he  says :  The  party  was  armed 
with  sabres  and  boarding  pikes,  and  some  few  had  pistols.  I  cannot 
tell  from  whence  the  weapons  were  procured.  They  were  served 
out  to  us  in  a  house  in  Chippewa. 

To  the  27th  cross-interrogatory,  he  says :  It  dispersed. 

To  the  28th  cross-interrogatory,  he  says :  The  force  disembarked 
about  one  of  the  clock  in  the  morning.  The  night  was  dark  and 
rather  cloudy  than  otherwise.  The  force  dispersed  to  their  separate 
quarters  after  their  return.  They  were  not  together  at  sunrise.  I 
have  not  seen  that  force  together  as  a  body  after  that  night,  though 
I  have  seen  several  of  the  persons  that  composed  it ;  but  I  cannot 
say  whether  or  not  they  were  armed  as  they  were  that  night. 

To  the  29th  cross-interrogatory,  he  says :  I  believe  ten  and  eleven 
o'clock  at  night. 

To  the  30th  cross-interrogatory,  he  says :  I  was  not  wounded,  but 
some  of  the  party  were.     No  one  was  killed. 

To  the  31st  cross-interrogatory,  he  says:  There  was  some  little 
resistance  made  by  those  attached  to  the  Caroline,  and  I  think  they 
had  pistols. 

To  the  32d  cross-interrogatory,  he  says :  I  think  the  sentinel  on 
board  the  Caroline  fired  a  musket  or  rifie,  and  some  of  them  on 
board,  I  think,  fired  pistols.    I  cannot  say  whether  they  made  use  of 


'■*• 


^'^' 

^^K- 


4..  II •;i 


■«t 


;.'  ill 

: 

m 

*!-HK'     -a    " 

uk 

ii' 

liife 

|k 

m 

u** 


150 


Gould's  reporter. 


any  other  weapons.  I  did  not  see,  and  do  not  know  whether  there 
were  any  canncn  or  munitions  of  war  on  board  of  the  Caroline. 

To  the  33d  cross-interrogatory,  he  says:  I  think  there  were  one 
killed  and  two  or  three  wounded.  I  did  not  kill  or  wound  any  one, 
nor  did  I  see  any  one  of  them  killed  or  wounded.  I  did  not  discharge 
a  gun  or  pistol,  or  strike  or  wound  any  one. 

To  the  34'th  cross-interrogatory,  he  says :  I  do  not  believe  there 
was  one. 

To  the  35th  cross-interrogatory,  he  says:  I  only  know  of  one 
person  that  went  on  shore,  and  he  went  into  the  ware-house  for  the 
purpose  of  casting  the  cable  off  that  fastened  the  Caroline. 

To  the  36th  cross-interrogatory,  he  says :  I  did  not,  nor  did  any 
of  the  attacking  party,  to  my  personal  knowledge,  take  or  carry 
away  any  of  the  articles  found  on  board,  or  belonging  to  the  Caro- 
line, though  there  were  some  mattrasses  thrown  into  the  boat  in 
which  I  was,  which  I  threw  over  board  into  the  stream. 

To  the  37th  cross-interrogatory,  he  says  :  I  do  not  know  who  first 
mentioned  it,  but  McLeod  certainly  did  not. 

To  the  38th  cross-interrogatory,  he  says  :  I  do  not  know,  and  have 
never  heard  from  him. 

To  the  39th  cross-interrogatory,  he  says :  I  did  not. 

To  the  4-Oth  cross-interrogatory,  he  says :  I  did  not. 

To  the  41st  cross-interrogatory,  he  says:  He  was  not  that  I  know 
of. 

To  the  4<2d  cross-interrogatory,  he  says :  I  know  nothing  of  the 
matters  contained  in  this  interrogatory. 

To  the  43d  cross-interrogatory,  he  says :  I  never  saw  him,  nor  heard 
of  him. 

To  the  44th  cross-interrogatory,  he  says :  I  know  nothing  whatever 
of  the  matters  contained  in  this  interrogatory. 

To  the  45th  cross-interrogatory,  he  says  :  He  did  not. 

To  the  46th  cross-interrogatory,  he  says :  Alexander  McLeod 
never  so  informed  me ;  nor  did  I  ever  hear  him  say  so ;  nor  do  I 
know  anything  of  the  matters  contained  in  this  interrogatory. 

To  the  47th  cross-interrogatory,  he  says :  Alexander  McLeod  did 
not  converse  with  me,  nor  did  I  with  him,  nor  did  he  with  any  per- 
son in  my  presence,  nor  did  I  with  any  person  in  his  presence,  on  the 
subject  of  the  Caroline,  at  any  time  whatever. 

To  the  48th  cross-interrogatory,  he  says :  1  did  not. 

To  the  49th  cross-interiogatory,  he  says :  Not  that  I  know  of. 

To  the  50th  cross-interrogatory,  he  says  :  I  did  not. 

To  the  51st  cross-interrogatory,  he  says:  Seven  boats  were  first 
engaged  in  the  expedition,  and  seven  started  from  the  mouth  of  the 
creek  near  to  Chippewa  village.  I  do  not  know  whether  any  got 
aground  on  Buckhorn  Island. 

To  the  52d  cross-interrogatory,  he  says :  I  do  not  know  whether 
any  person  or  persons  were  employed  to  pilot  the  boats.  I  know, 
and  have  heard  of  no  such  person  or  persons  as  are  named  in  this 
interrogatory. 

To  the  53d  cross-interrogatory,  he  says :  I  do  not  know  anything 
of  the  matteis  contained  in  this  interrogatory. 


m- 


jMcleod's  trial. 


151 


ether  there 
aroline. 
e  were  one 
ad  any  one, 
3t  discharge 

elieve  there 

low  of  one 

ouse  for  the 

ne. 

nor  did  any 

£6  or   carry 

to  the  Caro- 

the  boat  in 

low  who  first 

ow,  and  have 


t  that  I  know 
jthinw  of  the 


lim,  nor  heard 


ing 


whatever 


der  McLeod 
so  ;  nor  do  I 
ratory. 
McLeod  did 
vith  any  per- 
sence,  on  the 


enow  of. 

,ts  were  first 
nouth  of  the 
ther  any  got 

now  whether 
ats,  I  know, 
amed  in  this 

low  anything 


To  the  54th  cross-interrogatory,  he  says :  I  do  not  think  there  was 
any  armed  force  stationed  on  shore  at  or  near  where  the  Caroline 
was  lying.  I  do  not  think  we  were  attacked  or  fired  upon  from  the 
shore  or  from  the  ware-house,  and  I  was  very  busy  during  the  whole 
time  that  I  was  engaged  on  board  of  the  Caroline.  I  do  not  thin): 
Captain  Elmsley  went  ashore  at  all,  but  one  of  our  party  went  on 
shore  to  cast  off  the  cable,  but  he  met  with  no  opposition,  and  dis- 
covered no  armed  men. 

To  the  last  cross-interrogatory,  he  says :  I  do  not  know  of  any 
other  matter  or  thing  that  could  tend  to  the  benefit  or  advantage  of 
the  people  of  the  State  of  New  York. 

R.  ARMOUR. 
Sworn,  taken  and  subscribed,  at  the  city  of  Toronto,  in  the  Home 
District  of  Canada,  this  twenty-fifth  day  of  September,  1841, 
before  us, 

Secker  Bkough,  )  n  ^    •    • 
Adam  Wilson,     \  Commissioners. 

deposition   of   JOHN   GORDON. 

John  Gordon,  of  the  town  of  Hamilton,  in  the  Gore  District,  and 
Province  of  Canada,  Esq.,  aged  twenty-eight  ydlirs  and  upwards, 
being  produced,  sworn  and  examined,  in  the  behalf  of  the  defendant, 
in  the  title  of  these  depositions  named,  doth  depose  as  follows,  viz : 

To  the  1st  interrogatory  he  says  :  I  know  Alexander  McLeod,  late 
Deputy  Sheriff,  of  the  District  of  Niagara,  by  sight,  but  have  no 
personal  acquaintance  with  him.  I  think  the  time  that  I  saw  him 
was,  when  he  was  a  passenger  on  board  of  the  steamboat  I  command. 
I  cannot  state  positively  that  I  saw  him  more  than  once.  I  believe 
him  to  be  a  subject  of  Great  Britain,  and  a  native  of  Scotland. 

To  the  2d  interrogatory  he  says :  I  perfectly  recollect  the  time  of 
the  destruction  of  the  Caroline.  I  was  in  Chippewa  about  the  time 
of  her  destruction.     I  had  been  there  a  few  days  before  that  time. 

To  the  3d  interrogatory  he  says  :  The  persons  embarked  near  the 
mouth  of  the  Chippewa  river.  I  was  there  about  half  an  hour  before 
the  embarkation.  1  do  not  know  how  long  the  others  were  there 
before  I  came.  I  remained  on  the  beach  during  that  time.  I  had  no 
opportunity  of  knowing  any  of  the  persons,  except  those  in  the  boat 
which  I  commanded. 

To  the  4th  interrogatory  he  says,  I  do  not  know  where  the  said 
Alexander  McLeod  was.     He  was  not  in  my  boat. 

To  the  5th  interrogatory  he  says :  I  do  not  know  where  he  was, 
he  was  not  in  my  presence. 

To  the  6th  interrogatory  he  says : 
Schlosser,  which  boat  I  commanded. 

To  the  7th  interrogatory  he  says : 


I  went  in  one  of  the  boats  to 


I 


saw 


all  the  persons  in  the 
boat  1  went  in,  from  Canada  to  Schlosser.  I  am  satisfied  Alexander 
McLeod  was  not  one  of  them.  I  did  not  see  him  on  my  way  from 
Canada  to  Schlosser. 

To  the  8th  interrogatory  he  says  :  I  saw  the  Caroline  on  the  night 
of  her  destruction.  I  was  on  board  of  her.  I  was  not  below ;  that  is 
to  say,  not  in  the  gentlemen's  cabin,  but  with  this  exception,  I  think 


■:^ 


mi 


w 


152 


GOULD'S   BEPOBTBB. 


I  was  in  every  part  of  her.  I  went  on  board  at  the  same  time  as  the 
other  assailants,  and  went  on  board  at  the  aft  part  of  her,  after  the 
whole  of  the  assailants  had  left  her.  I  returned  for  the  purpose  of 
securing  her  colours ;  was  on  board  for  I  should  think  nearly  five 
minutes.  I  did  not  sec  Alexander  McLeod  on  board  of  the  Caroline. 
To  the  best  of  my  knowledge  he  was  not  there. 

To  the  9th  interrogatory  he  says  :  I  did  not  see,  nor  do  I  know 
any  thing  of  any  person  having  been  killed  during  the  attack  on  the 
Caroline,  or  conveyed  on  the  dock  at  Schlosser,  and  left  remaining 
there. 

To  the  10th  interrogatory  he  says :  1  do  not  think  I  saw  any  of 
the  men,  with  the  exception  of  my  own  boat's  cre^v,  at  the  time  men- 
tioned in  this  interrogatory.  I  did  not  see  Alexander  McLeod  that 
night  or  since. 

To  the  11th  interrogatory  he  says:  I  cannot  say  how  many  boats 
started  ;  five  reached  the  Caroline.  I  do  no  know  how  many  returned 
in  company. 

To  the  12th  interrogatory  he  says  :  I  know  Sir  Allan  McNab.  He 
was  on  the  beach  when  the  boats  started.  It  was  by  his  command, 
to  the  best  of  my  knowledge,  that  the  expedition  was  undertaken.  I 
did  not  hear  him  give  any  directions. 

To  the  13th  interrogatory  he  says :  Captain  Drew  commanded  the 
expedition.  Does  not  know  under  whose  orders  Captain  Drew 
acted. 

To  the  last  interrogatory  he  says :  I  have  stated  all  I  know  in  my 
answers  to  the  foregoing  interrogatories. 

JOHN  GORDON. 

Sworn,  taken,  and  subscribed  before  me,  this  16th  day  of  Septem- 
i  her,  one  thousand  eight  hundred  and  forty-one,  at  the  town  of 
^        Hamilton,  in  Canada. 

Secker  Bbough,  Commissioner. 


Answers  to  the  interrogatories  by  way  of  cross  examination. 

The  said  John  Gordon  being  duly  sworn,  to  the  1st  cross-interrogatory 
says :  I  command  the  steamboat  "  Britannia."  I  am  twenty-nine 
years  of  age,  and  when  on  shore  usually  reside  at  Hamilton.  I  have 
Been  seven  years  in  Canada — am  a  native  of  Scotland. 

To  the  2d  cross  interrogatory  he  says :  I  commanded  the  third 
division  of  the  Naval  Brigade  at  Chippewa,  in  the  month  of  Decem- 
ber, 1837;  that  is  to  say,  I  did  so  after  the  destruction  of  the 
Caroline.  I  was  not  attached  to  any  vessel.  I  commandt  d  a  division 
of  boats  previous  to  the  destruction  of  the  Caroline.  I  was  a  captain 
in  a  regiment  of  "  Gore  Militia." 

To  the  3d  cross  interrogatory  he  says :  I  did  not  to  my  knowledge 
see  Alexander  McLeod  at  the  time  mentioned  in  this  cross  interroga- 
tory. 

To  the  4th  cross-interrogatory  he  says :  I  never  had  any  conver- 
sation or  interview  with  Alexander  McLeod  respecting  the  Caroline, 
nor  did  I  ever  hear  him  converse  on  that  subject. 

To  the  5th  cross-interrogatory  he  says :   I  have  already  answered 


'i^'-^:r. 


* 

..•■■■,  w; 

'■r 

'• 

■■*, 

boats 
nine. 


Mcleod's  tbial. 


153 


nne  as  the 

after  the 
iirpose  of 
learly  five 

Caroline. 

lo  I  know 
ick  on  the 
remaining 

law  any  of 
time  men- 
;Leod  that 

lany  hoats 
y  returned 

:Nab.  He 
command, 
3  r  taken.    I 

nanded  the 
itain  Drew 

:now  in  my 

ORDON. 
of  Septem- 
he  town  of 

lissioner. 

lation. 

[terrogatory 

wenty-nine 

n.     1  have 

\A  the  third 
of  Decem- 
lion   of  the 
Id  a  division 
IS  a  captain 

J  knowledge 
Is  interroga- 

[ny  conver- 
ge Caroline, 

ly  answered 


that  I  never  spoke  to  Alexander  McLeod  respecting  the  Caroline.  I 
have  not  spoken  to  him  since  the  year  1836. 

To  the  6th  cross-interrogatory  he  says  :  I  did  not  at  any  time  go 
with  McLcod  round  Navy  Island. 

To  the  7th  cross-interrogatory  he  says :  I  know  nothing  of  the 
matters  inquired  after  in  this  cross-interrogatory. 

To  the  8th  cross-interrogatory  he  says :  He  never  did. 

To  the  9th  cross-interrogatory  he  says :  The  plan  for  the  destruc- 
tion of  the  Caroline  was  communicated  to  me  about  two  hours  before 
the  starting  of  the  expedition.  I  did  not  communicate  the  plan,  or 
any  part  of  it,  to  Alexander  McLeod,  nor  was  he  present  when  it 
was  communicated  to  me.  I  am  not  aware  that  he  knew  of  the 
same. 

To  the  10th  cross-interrogatory  he  says  :  I  was  not  aware  that  the 
Caroline  was  at  Schlosser.  I  was  under  the  impression  that  she  was 
at  Navy  Island,  until  after  I  had  passed  Navy  Island  on  my  way  to 
destroy  her  with  the  other  boats.  Alexander  McLeod  did  not  inform 
me  that  she  was  at  Schlosser.  I  made  every  preparation  a  short 
Ume  before  the  expedition  started.  After  the  return  of  the  expedi- 
tion, I  went  to  Davis's  tavern  at  Chippewa. 

To  the  1 1th  cross  interrogatory  he  says  :  I  do  not  recollect  whe- 
ther I  was  or  not  at  Davis's  tavern.  I  did  not  see  Alexander  McLeod 
there.  I  did  not  on  any  day  after  the  destruction  of  the  Caroline 
see  McLeod,  or  converse  with  him  on  any  subject. 

To  the  12th  cross-interrogatory  he  says :  I  was  present  at  the 
burning  of  the  steamboat  Caroline.  I  commanded  one  of  the  boats. 
I  was  ^t  the  embarkation  of  the  expedition  and  saw  it  embark.  I 
cannot  say  how  many  persons  were  present,  at  or  near  the  place, 
when  the  boats  started.  I  should  think  at  least  two  hundred 
or  three  hundred. 

To  the  13th  cross-interrogatory  he  says  :  I  should  think  between 
forty  and  fifty  persons  embarked  on  the  expedition.  I  did  not  know 
them  all.  I  was  one  of  them.  I  think  there  were  seven  including 
myself  in  the  boat  I  commanded.  I  was  on  board  of  the  Caroline. 
I  assisted  in  casting  her  off,  and  in  towing  her  into  the  stream,  as  I 
think. 

To  the  14th  cross  interrogatory  he  says:  Cutters  and  Jolly 
boats ;  I  should  think  the  number  in  each  averaged  from  seven  to 
nine.  There  were  five  boats  at  the  destruction  of  the  Caroline  ;  they 
were  nearly  of  the  same  size.  I  cannot  say  how  many  boats  started 
on  the  expedition. 

To  the  15th  cross  interrogatory  he  says :    I  did  not. 

To  the  16th  cross  interrogatory  he  says:  I  did  not  know  all 
who  were  in  the  same  boat  with  me  ;  I  did  not  recognize  each  one 
of  them,  nor  did  I  speak  to  each  individually ;  Captain  Drew  com- 
manded the  expedition  ;  I  commanded  the  boat  I  was  in. 

To  the  17th  cross  interrogatory  he  says :  I  returned  in  the  same 
boat  in  which  I  embarked,  and  believe  that  all  those  who  went  with 
me  returned  with  me,  but  cannot  say  positively. 

To  the  18th  cross  interrogatory  he  says :  I  believe  not ;  I  have 
vy  understood  that  two  failed :  I  cannot  say  who  commanded  them, 

-:*^  20 


^1'  \i  I 


J 


Ijf 


■■(.',',' iii 


■■^. 


'»?.■■ 


\  -■:<■•■ 


'i^-r- 


154. 


gould'b  reporter. 


f 


i^: 


or  what  beeame  of  them.  The  boats  arrived  as  nearly  together 
as  possible  ;  cannot  say  which  arrived  first. 

To  the  19th  cross  interrogatory  he  says:  lam  not  certain  there 
was  any  man  by  the  name  of  McLeod  in  the  expedition. 

To  the  20th  cross  interrogatory  he  says  :  The  expedition  embark- 
ed from  no  wharf  or  pier,  but  from  the  bank  of  the  river. 

To  the  21st  cross  interrogatory  he  says:  All  the  boats  were 
together  on  the  bank  of  the  river ;  they  started  as  nearly  as  possi- 
ble at  the  same  time. 

To  the  22nd  cross  interrogatory  he  says:  I  cannot  say. 

To  the  23rd  cross  interrogatory  he  says:  The  force  em- 
ployed consisted  entirely  of  volunteers ;  there  were  some  half-pay 
officers  of  the  Navy  amongst  them  ;  the  men  came  as  volunteers, 
and  entered  the  boats  in  the  order  in  which  they  chose.  The  force 
was  not  drafted  or  levied;  I  am  not  aware  that  they  marched  up  in 
a  body ;  I  understood  there  was  a  party  at  the  Naval  Officers'  quar- 
ters who  acted  in  a  body,  but  cannot  say  whether  they  marched  up 
together  or  not. 

To  the  24th  cross  interrogatory  he  says :  I  believe  it  was  not 
before  or  after  the  embarking  so  displayed. 

To  the  25th  cross  interrogatory  he  says :  They  were  in  their 
own  ordinary  dress ;  they  were  not  dressed  in  any  uniform. 

To  the  26th  cross  interrogatory  he  says :  I  cannot  exactly 
say  how  the  men  were  armed ;  some  probably  had  no  arms,  others 
had  swords  and  pistols ;  I  believe  the  arms  were  principally  procur- 
ed from  the  quarters  of  the  Naval  Officers. 

To  the  27th  cross  interrogatory  he  says :  To  the  best  of  my 
knowledge  the  force  dispersed  to  their  different  quarters  ;  my  party 
did  so. 

To  the  28th  cross  interrogatory  he  says:  I  think  the  force 
disembarked  about  one  in  the  morning ;  it  was  a  star-light,  not  a 
moon-light  night ;  it  was  neither  a  very  clear  nor  a  very  dark  night. 
To  the  best  of  my  knowledge  the  force  dispersed  to  their  quarters  ; 
I  am  hot  aware  that  they  were  together  the  next  morning ;  I  have 
not  seen  them  together  since  ;  I  have  not  seen  that  force  or  any  part 
of  it  armed  and  equipped  as  it  was  that  night. 

To  the  29th  cross  interrogatory  he  says :  The  expedition  em- 
barked I  think  between  10  and  1 1  o'clock. 

To  the  30th  cross  interrogatory  he  says :  I  was  not  wounded ; 
I  believe  Mr.  McCormick  was  wounded,  and  two  others ;  Richard 
Arnold  and  Major  Warren  were  the  two ;  no  one  was  killed. 

To  the  31st  interrogatory  he  says:  We  were  fired  upon  before 
we  boarded  by  the  persons  keeping  sentry  at  the  after  gang- ways  ;  I 
cannot  say  of  what  description  the  weapons  were ;  I  heard  numerous 
shots  fired,  but  cannot  say  whether  on  board  the  Caroline,  or  from 
the  shore. 

To  the  32nd  cross  interrogatory  he  says :  I  answered  the  first 
part  of  this  interrogatory  in  my  answer  to  the  preceding  interroga- 
tory. I  am  not  aware  whether  they  used  any  swords  or  pikes,  or 
other  military  weapons,  except  as  I  have  before  stated.  I  dj  not 
know  whether  the  boat  was  armed,  or  any  of  the  men  on  board  her, 


^:% 


MCLEOD  S   TRIAL. 


155 


ly  together 

iertain  there 

ion  embark- 

boats  were 
ly  as  possi- 


force  em- 
me  half-pay 

volunteers, 

The  force 

arched  up  in 

fficers'  quar- 

marched  up 

e  it  was  not 

were  in  their 
'orm. 

mnot  exactly 
arms,  others 
ipally  procur- 

;  best  of  my 
rs ;  my  party 

ik  the  force 
r-light,  not  a 
y  dark  night, 
leir  quarters ; 
ning ;  I  have 
e  or  any  part 

cpedition  em- 

lot  wounded ; 
jrs ;  Richard 
iUed. 
upon  before 
ang-ways ;  I 
rd  numerous 
line,  or  from 

tred  the  first 
ag  interroga- 
or  pikes,  or 
Id.  I  dj  not 
W  board  her, 


•>•'■ 


or  whether  there  Avere  any  munitions  of  war  on  board,  except  us  I 
have  before  stated. 

To  the  33rd  cross  interrogatory  he  says  :  1  am  not  aware  whether 
any  of  the  persons  found  on  board  the  Caroline  were  killed  or 
wounded  ;  I  did  not  kill  or  wound  any  one. 

To  the  Slth  cross  interrogatory  he  says  :  No  person  was  on  board 
the  Caroline  that  I  am  aware  of  when  she  was  cut  loose  and  sent 
over  the  Falls. 

To  the  35th  cvogs  interrogatory  he  says:  I  did  not  go  on  shore  j 
I  cannot  say  whether  any  of  the  others  did  ;  I  believe  some  of  the 
party  did,  but  do  not  know  that  any  of  the  party  went  into  the  store- 
house near  the  wharf. 

To  the  36th  cross  interrogatory  he  says  :  I  did  not  take  any  thing 
from  on  board  the  Caroline;  I  believe  some  lamps  were  taken  from  on 
board,  and  one  mattrass  on  which  Lieutenant  McCormack  was  laid 
when  wounded ;  I  believe  also  the  boat's  flag  was  taken  from  on  board  ; 
I  do  not  know  of  any  other  property  being  taken ;  I  cannot  state 
where  the  articles  taken,  if  any  were  taken,  were  carried  to. 

To  the  37th  cross  interrogatory  he  says :  I  cann'ot  at  all  remem- 
ber that  I  heard  that  the  steam-boat  was  coming  to  Schlosser  or  Navy- 
Island,  before  I  saw  her  in  the  neighborhood  of  Navy  Island. 

To  the  38th  cross  interrogatory  he  says :  I  am  not  aware  of  hav- 
ing seen  or  heard  of  the  person  enquired  after  by  this  cross  inter- 
rogatory until  this  the  time  of  my  examination. 

To  the  39th  cross  interrogatory  he  says :  I  have  answered  this 
cross  interrogatory  in  my  answer  to  the  preceding  one. 

To  the  40th  interrogatory  he  says  :  Never. 

To  the  41st  interrogatory  he  says:  I  have  answered  this  in  my 
answer  to  former  cross  interrogatories,  from  number  38  to  the  42nd 
cross  interrogatories  he  says,  I  know  nothing  of  the  matter  enquired 
after  by  this  cross  interrogatory. 

To  the  43d  interrogatory  he  says  :  I  have  no  other  answer  to  give 
to  this  cross  interrogatory  than  what  I  have  answered  to  the  enqui- 
ries respecting  this  individual. 

To  the  44th  cross  interrogatory  he  says  :  T  never  heard  nor  do  I 
know  that  Alexander  JVJcLeod  went  to  Buffalo  for  the  purpose  men- 
tioned in  this  cross  interrogatory,  or  for  any  other  purpose  in  De- 
cember one  thousand  eight  hundred  and  thirty-seven,  or  at  any  oth- 
er time. 

To  the  45th  cross  interrogatory  he  says :  McLeod  never  spoke  to 
me,  or  to  any  other  person  in  my  presence,  on  the  subject. 

To  the  46th  cross  interrogatory  he  says :  1  know  nothing  of  the 
matters  enquired  after  by  this  cross  interrogatory. 

To  the  47th  cross  interrogatory  he  says :  McLeod  never  had  any  con- 
versation with  me,  or  with  any  person  in  my  presence,  on  the  sub* 
ject  of  the  Caroline,  nor  did  I  ever  converse  with  any  person  in  his 
presence  on  the  subject  of  the  Caroline. 

To  the  48th  cross  interrogatory  he  says :  Never. 

To  the  49th  cross  interrogatory  he  says ;  Never  to  my  knowledge, 
nor  have  I  ever  understood  so  from  him. 

To  the  50th  cross  interrogatory  he  says :  Never. 


|l;4vi'. 


1 


u 


'ii  ^\  'lii 


l-f'i 


St!'1 


156 


oovld's  reporter. 


i 


To  the  5l8t  cross  interrogatory  he  says:  To  the  best  of  my 
knovvlcMJge  seven  bouts  were  at  first  cnpajretl  in  the  expedition,  and 
ull  started  ii  little  above  the  mouth  of  Chippewa  Creek  ;  I  do  not  know 
how  many,  or  whether  any  boat  got  aground  at  Buckhorn  Island. 

To  the  52nd  cross  interrogatory  he  says:  I  am  not  aware  that  any 
person  was  employed  to  pilot  the  boats ;  I  know  a  person  of  the 
name  of  Weishuhu  who  resided  at  Chippewa  in  December  1837 ;  he 
has  I  believe  two  or  three  sons  ;  I  believe  none  of  them  were  enga- 
ged in  the  expedition  against  the  Caroline ;  1  boarded  at  Weishuhu's 
house  at  the  period  in  question  ;  I  am  not  aware  Ihat  any  person  of 
the  name  mentioned  in  this  interrogatory  was  engaged  in  the  expe- 
dition. 

To  the  53d  cross  interrogatory  he  says :  I  entered  into  the  expe- 
dition at  the  personal  request  of  Sir  Allan  McNab,  and  I  have  no 
further  knowledge  of  any  order  or  command,  public  or  private,  ver- 
bal or  in  writing,  given  by  him.  I  cannot  state  whether  Sir  Allan 
McNab  requested  any  other  person  to  join  the  expedition  ;  Sir  Allan 
McNab's  request  to  me  as  above  mentioned,  was  made  about  two 
hours  before  the  expedition  started. 

To  the  S-ith  cross  interrogatory  he  says  :  I  am  not  aware  that  any 
armed  force  was  stationed  on  the  land  at  or  near  the  wharf  where 
the  Caroline  was  lying.  I  do  not  know  whether  the  shots  came 
from  the  store-house  ;  I  rather  think  ihey  came  from  the  neighbor- 
hood of  a  tavern,  or  from  that  direction  ;  I  understood  at  the  time, 
but  do  not  know,  there  was  a  guard  placed  on  the  wharf  to  protect 
the  expedition  while  cutting  loose  the  Caroline.  I  do  not  know 
whether  Lieutenant  Elmsley  was  there  or  was  sent  there,  or  what 
number  of  men  the  guard  consisted  of,  or  whether  the  guard  met 
with  any  opposition  or  discovered  any  armed  men. 

To  the  last  interrogatory  he  says :  I  do  not  know  nor  can  I  state 
any  thing  other  than  what  I  have  stated,  touching  the  matters  enquir- 
ed of  by  this  interrogatory.  * 

JOHN  GORDON. 

Sworn,  taken  and  subscribed,  at  the  town  of  Hamilton,  Canada,  this 
16th  day  of  September,  1841,  before  me, 

Secker  Brough,  Commissioner. 

DEPOSITION   OF    CHRISTOPHER   BIER. 

Christopher  Bier,  of  Chippewa,  aged  forty-nine,  being  produced, 
sworn  and  examined  on  behalf  of  the  defendant  in  the  title  of  these 
depositions  named,  doth  depose  as  follows : 

To  the  1st  interrogatory,  he  says :  I  have  seen  McLeod  but  have 
had  no  acquaintance  with  him.  I  have  known  him  by  sight  since 
about  the  beginning  of  January,  1838,  but  not  before  the  destruction 
of  the  Caroline. 

To  the  2d  interrogatory,  he  says :  I  recollect  the  destruction  of 
the  Caroline,  I  was  in  Chippewa  at  that  time.  I  had  been  in  Chippe- 
wa since  the  24ith  December,  1837. 

To  the  3d  interrogatory,  he  says :  They  embarked  from  Chippewa 
Creek.  I  can  only  speak  with  certainty  as  to  those  who  went  in  the 
boat  with  me,  and  they  entered  the  boat  immediately  upon  their  coming 


a-!' 


Mcleod's  trial. 


157 


t  of  my 
ion,  and 
)t  know 
Island, 
that  any 
1  of  the 
837  j  he 
re  enga- 
ishuhu's 
erson  of 
he  expe- 

the  expe- 
have  no 
/ate,  vcr- 
Sir  Allan 
Sir  Allan 
ibout  two 

3  that  any 
arf  where 
ots   came 
nelghbor- 
the  time, 
;o  protect 
not  know 
p,  or  what 
guard  met 

can  I  state 
rs  enquir- 

)0N. 
anada,  this 

ssioner. 


produced, 
le  of  these 

but  have 
sight  since 
(estruction 

ruction  of 
|in  Chippe- 

Chippewa 
irent  in  the 
sir  coming 


to  the  beach.  I  accompanied  my  crew.  I  had  no  opportunity  of 
Hceing  and  noticing  pcrNons  who  went  on  the  expedition,  excepting 
officers  commanding  boats,  and  my  own  boat's  crow. 

To  the  'I'th  interrogatory,  he  says :  I  do  not  know  where  Alexander 
McLcod  was.     I  know  ho  was  not  in  the  boat  I  commanded. 

To  the  5th  interrogatory,  he  says:  I  do  not  know  whore  Alexan- 
der McLood  was  at  the  time  mentioned  in  this  interrogatory.  I  do 
not  recollect  to  have  seen  him  at  all  during  tliat  evening. 

To  tile  6th  interrogatory,  he  says:  I  went  in  a  boat  on  the  expe- 
dition, and  I  was  in  command  oi  the  boat  in  which  I  went. 

To  the  7th  interrogatory,  he  says:  I  saw  all  the  persons  who  went 
with  me  in  my  boat  from  Canada  to  Schlosser.  I  knew  them  per- 
sonally. McLeod  was  not  one  of  them.  I  did  not  see  him  at  all 
that  evening. 

To  the  8th  interrogatory,  he  says  :  I  saw  the  Caroline  on  the  night 
of  her  destruction.  I  was  on  board  of  her,  and  in  every  part  of  her. 
I  went  on  board  of  her  as  nearly  as  possible  at  the  same  time  with 
the  other  assailants.  We  all  left  her  about  the  same  time.  I  did 
not  see  McLcod  among  the  assailants. 

To  the  9th  interrogatory,  he  says  :  I  know  nothing  of  the  transac- 
tion enquired  after  by  this  interrogatory. 

To  the  10th  interrogatory,  he  says :  I  saw  a  number  of  the  men, 
but  not  all  of  them  who  had  been  engaged  in  the  destruction  of  the 
Caroline,  when  they  landed  on  the  Canada  shore  on  our  return.  1 
did  not  see  McLeod  either  before  or  after  my  return  from  the  Caro- 
line that  evening  or  night. 

To  the  11th  interrogatory,  he  says  :  Seven  started,  five  reached  her, 
•hey  returned  straggling,  but  within  ten  minutes  one  after  the  other. 

To  the  12th  interrogatory,  he  says :  I  know  Sir  Allan  McNab.  He 
was  on  the  beach  of  Chippewa  Creek  when  the  expedition  started. 
We  received  our  orders  from  Captain  Drew,  who  commanded  the 
expedition.  I  cannot  say  by  whose  command  the  expedition  was 
undertaken.  Captain  Drew's  orders  were,  "  the  steamboat  is  our  ob- 
ject, follow  me." 

To  the  13th  interrogatory,  he  says  :  Captain  Drew.  I  do  not  know 
by  whose  orders  he  assumed  such  command. 

To  the  last  interrogatory,  he  says :  I  know  nothing  further  than 
what  I  have  already  stated  in  my  foregoing  answers. 

CHRISTOPHER  BIER. 
Sworn,  taken  and  subscribed  at   the  village  of  Chippewa,    in   the 

province  of  Canada,  this  twentieth  day  of  September,  in  the  year 

of  our  Lord  one  thousand  eight  hundred  and  forty-one,  before  us. 

o  ti         '    ?  Commissioners. 

Secker  Brough,  / 


Answers  to  the  interrogatories  by  way  of  cross-examination  proposed  to 

Christopher  Bier. 
To  the  1st  cross-interrogatory,  he  says  :  I  reside  on  board  of  Her 
Majesty's  Steamer  "  Minos,"  on  lake  Erie,  resided  there  for  twelve 
months.    I  am  a  native  of  England,  and  have  resided  in  Canada  about 
nine  years.    I  am  forty-nine  years  of  age,  and  am  a  naval  officer. 


eA 


1  \ 
I  i 


ti 


I ' 


158 


(■OI/LD's    REPOnXER. 


To  the '2(1  crosH-iiitcrropntory,  ho  Hnys :  I  wnH  commnndinpf  ii  rli- 
viHion  of  bouts  in  Dcccmbijr,  1837.  I  was  not  there  in  coinninnd  a: 
nttnolicd  to  any  vomscI.  I  was  not  attached  to  the  Kind  fore*',  hut  re- 
ceiveil  pay  iis  a  captain  of  militia.  There  was  a  force  at  that  time 
ealled  the  Nuval  IJriirach'  to  whicli  I  was  attached. 

To  the  'M  crosH-iiiterrooutory,  he  says:  I  did  sec  McLeod  some 
two  or  three  days  previous  to  the  burning  of  the  Caroline.  I  do  not 
kn(»w  how  often  or  what  purtiuular  times.  It  was  at  Chippewa  I 
Muw  him. 

To  the  4th  croHs-intorrogatory,  he  says:  I  never  heard  him  speak 
or  converse  on  the  subject  of  the  Caroline. 

To  the  oth  croHH-interrogatory,  ho  says:  He  never  told  me  any 
thing  about  the  Caroline. 

To  the  (ith  croHH-interrogatory,  ho  soys  :  I  did  not  at  any  time  go 
in  a  boat  with  McLcod  around  Navy  Island. 

To  the  7th  cross-interrogatory,  ho  says:  I  neither  know  nor  have 
I  ever  understood  any  thing  from  McLeod  respecting  the  matters  en- 
quired after  by  this  interrogatory. 

To  the  8th  cross-interrogatory,  he  says  :  He  never  did. 

To  the  9th  cross-interrogatory,  he  says :  It  did  not  occur  to  me. 
I  was  first  nuxde  aware  that  nn  expedition  was  intended,  about  6  o'- 
clock on  the  evening  of  the  day  on  which  the  Caroline  was  destroy- 
ed, but  did  not  know  nor  was  informed  the  object  of  that  expedition. 
About  ten  or  eleven  o'clock  that  evening  1  was  informed  that  the 
steamboat  was  our  object.  I  did  not  communicate  the  object  or  any 
part  of  it  to  McLeod.  He  was  not  present  when  it  was  communica- 
ted to  me,  nor  do  I  know  whether  he  was  aware  of  it. 

To  the  10th  cross-interrogatory,  he  says  :  No  person  informed  me 
that  the  Caroline  was  at  Schlosser.  McLeod  tfid  not  inform  me. 
We  commenced  preparations  for  the  expedition  about  8  o'clock  in 
the  evening.  After  the  return  of  the  expedition  wc  went  to  our 
quarters. 

To  the  11th  cross-interrogatory,  he  says:  I  was  not  at  Davis's  tav- 
ern on  the  day  after  the  night  of  the  burning  of  the  Caroline.  I  did 
not  see  or  converse  with  McLeod  at  or  near  Davis's  tavern  on  the 
Monday  or  any  day  after  the  burning  of  the  Caroline. 

To  the  12th  cross-interrogatory,  he  says :  I  was  present  at  the 
burning  of  the  Caroline.  I  was  concerned  in  the  expedition,  and  saw 
and  was  present  at  its  embarkation.  About  some  hundreds  were 
present  on  the  shore  where  the  boats  started  from. 

To  the  13th  cross-interrogatory,  he  says :  Sixty-three  started  up- 
on the  expedition,  there  being  seven  boats  and  nine  men  in  each 
boat.  Five  boats  only  reached  the  Caroline,  containing  forty-five 
men.  The  strict  orders  were,  that  each  boat  should  contain  only 
nine  men,  the  officers  in  command  included.  I  was  one  of  the  men  en- 
gaged in  the  expedition,  there  was  eight  men  in  the  boat  with  me. 
1  was  on  board  of  the  Caroline  and  assisted  in  every  way  in  my  pow- 
er to  destroy  her. 

To  the  14th  cross-interrogatory,  he  says :  The  kind  of  boats  be- 
longing to  merchant  vessels,  they  were  nearly  of  the  same  size  and 
description.     The  rest  of  this  interrogatory  I  have  already  answered. 


To  the 
rccogni/c 
To  the 
boat  and 
Ciipfain  L 
was  in. 

To  the 
boat  I  cm 
with  me,  ( 
also. 

To  the 
Caroline, 
one,  and  I 
I  do  not  k 
To  the 
edge  of  til 
To  the  'J 
pier. 

To  the  2 
together  at 
To  the  2 
intervals,  ai 
place  when 
To  the  2i 
from  the  m 
and  navy,  tl 
der  the  con 
peetive  boai 
To  the  2 
To  the   2 
tiieir  usual, 
To  the  26 
cutlasses  an 
gade. 

To  the  27 

their  respeci 

To  the  28 

about  1  or  2 

it  was  cloud 

to  its  quarte 

them  togeth( 

in  their  respi 

they  were  th 

To  the  291 

the  morning 

To  the  301 

one  was  kilh 

To  the  31 

tance,  they  h 

ing  and  demi 


our 


the 
id  saw 
were 

ed  up- 
each 
ty-five 
only 
en  en- 
L  me. 
pow- 

its  be- 
ZG  and 


Mrt.EOD's    TUIAr,. 


1.^0 


To  the  ir>th  orosB-interrojTfitory,  he  nnyn:  I  did  not  know  nil,  or 
rccogni/c  tlic  face  of  ciicli  who  went  on  the  rxpcdition. 

To  the  Kith  crosH-intcrroiriUory,  he  says:  I  knew  every  one  in  the 
l)oat  and  spolic  to  and  recof^nizcd  each  one  in  the  boat  1  was  in. 
Captain  Drew  cointnantk'd  tho  expedition.  1  coininanded  the  boat  I 
was  in. 

To  the  17th  cross-interropatory,  he  anys  :  I  rotnrned  in  the  same 
boat  I  embarked  in,  the  same  persons  that  wont  with  mo  returned 
with  me,  eight  otlicrsthat  belonged  to  other  b«)nts  returned  with  me 
also. 

To  the  ISth  cross-interrojrntory,  he  says:  Five  boats  reached  the 
Caroline,  two  failed,  of  which  (-aptain  .1.  P.  Uattersby  commanded 
one,  and  I  think  .1.  P.  Currant  was  the  senior  olficer  in  the  other,  but 
I  do  not  know  from  my  own  knowledge  who  commanded  her. 

To  the  19th  cross  interrogatory,  he  says  :  No  person  to  my  knowl- 
edge of  tho  name  of  McLeod  was  in  tho  expedition. 

To  the  *20th  cross-interrogatory,  he  says :  Not  from  any  wharf  or 
pier. 

To  the  21st  cross  interrogatory,  he  snys  :  The  boats  all  lay  close 
together  at  the  same  landing  place,  and  started  at  the  same  time. 

To  the  '2id  cross-interrogatory,  he  says :  The  boats  returned  at 
intervals,  and  the  crews  disembarked  as  they  arrived,  and  at  the  same 
place  whence  they  started.     I  did  not  see  them  all  disembark. 

To  tho  23d  cross-interrogatory,  he  says:  They  were  volunteers 
from  the  militia,  some  of  them  had  formerly  belonged  to  the  army 
and  navy,  they  were  not  drafted  or  levied,  they  came  up  as  crews  un- 
der the  command  of  their  different  officers  and  so  entered  their  res- 
pective boats. 

To  the  24'th  cross-interrogatory,  he  says :  No. 

To  the  25th  cross-interrogatory,  he  says :  They  were  dressed  in 
their  usual,  and  in  their  own  clothing  and  in  no  uniform. 

To  the  26th  cross-interrogatory,  he  says :  They  were  armed  with 
cutlasses  and  pistols,  the  arms  were  served  out  from  the  Naval  Bri- 
gade. 

To  the  27th  cross-interrogatory,  he  says :  The  force  dispersed  to 
their  respective  quarters. 

To  the  28th  cross-interrogatory,  he  says  :  The  force  disembarked 
about  1  or  2  o'clock,  A.  M.  The  night  was  not  moon-light.  I  think 
it  was  cloudy,  but  cannot  remember  exactly.  The  force  dispersed 
to  its  quarters.  It  was  not  together  at  sun-rise.  I  have  never  seen 
them  together  as  a  force  since.  I  have  seen  individuals  of  them  serve 
in  their  respective  corps,  some  of  whom  were  armed  and  equipped  as 
they  were  that  night,  such  being  their  usual  equipment. 

To  the  29th  cross-interrogatory,  he  says :  About  1  or  2  o'clock  in 
the  morning  we  disembarked. 

To  the  30th  cross-interrogatory,  he  says  :  I  was  not  wounded.  No 
one  was  killed.     Three  were  wounded. 

To  the  31st  cross-interrogatory,  he  says :  Yes,  there  was  resis- 
tance, they  had  a  musket  or  rifle,  for  the  sentry  fired  after  challeng- 
ing and  demanding  the  countersign.-    I  suppose  they  had  other  fire- 


'^  Ji^'H 


.i  •^;i 


w^ 


160 


MCLEOD  8   TRIAL. 


arms  from  the  circumstance  of  hearing  pistols  on  board,  and  from 
the  fact  of  some  of  our  party  being  wounded. 

To  the  32d  cross-interrogatory,  he  says :  A  gun  was  fired,  as  1 
have  stated  in  my  snswer  to  the  previous  interrogatory.  My  im- 
pression is  strong,  that  they  were  armed,  because  so  few  of  our 
men  were  allowed  to  go  forward.  Captain  Drew  himself  prevented 
them,  and  from  the  number  of  pistol  shots  fired  there  must  have  been 
more  shots  than  those  proceeding  from  our  own  party.  Of  the  few 
who  did  advance  towards  the  people  on  board  three  were  wounded. 
I  did  not  see  any  cannons  or  any  munitions  of  war  on  board,  no  search 
was  made  for  such.  The  boat  was  immediately  cut  loose,  towed 
into  the  current,  fired  and  set  adrift. 

To  the  33d  cross-interrogatory,  he  says :  I  saw  two  wounded  and 
none  killed  oa  board  of  the  Caroline,  but  saw  one  man  lying  dead  on 
the  dock.  I  did  not  to  my  knowledge  kill  or  wound  any  one.  I  did 
not  discharge  a  gun  or  pistol,  nor  did  I  strike  any  one  with  a  sword 
or  other  weapon. 

To  the  34'th  cross-interrogatory,  he  says :  None. 

To  35th  cross-interrogatory,  he  says :  I  did  not,  but  saw  some  of 
the  attacking  party  on  the  shore,  who  went  ashore  to  cast  the  vessel 
loose,  none  of  them  went  into  the  ware-house. 

To  the  36th  cross-interrogatory,  he  says :  I  did  not,  nor  was  there 
any  thing  carried  away  in  the  boat  I  was  in  from  on  board  the 
Caroline. 

To  the  37th  cross-interrogatory,  he  says :  I  never  heard  of  the  Car- 
oline coming  down  from  Bufllalo.  McLeod  did  not  so  inform  me, 
but  I  saw  her  plying  between  Navy  Island  and  Schlosser  with  a  great 
many  people  on  board. 

To  the  '■'8th  cross-interrogatory,  he  says :  I  neither  know  nor 
have  heard  of,  nor  to  my  knowledge  have  ever  seen  Sylvanus  Rigby. 

To  the  39th  cross-interrogatory,  he  says :  I  did  not. 

To  the  4iOth  cross-interrogatory,  he  says :  I  did  not. 

To  the  41st  cross-interrogatory,  he  says :  No. 

To  the  42d  cross-interrogatory,  he  says  :  I  know  nothing,  nor  have 
I  ever  understood  any  thing  from  the  said  Rigby  enquired  of  by  this 
interrogatory. 

To  the  43d  cross-interrogatory,  he  says :  I  am  ignorant  of  the  sub 
ject  of  this  interrogatory. 

To  the  44th  cross-interrogatory,  he  says :  I  know  nothing  of  the 
matters  inquired  after  in  this  interrogatory. 

To  the  45th  cross-interrogatory,  he  says :  McLeod  never  made 
any  communication  to  me  respecting  the  Caroline. 

To  the  46th  cross-interrogatory,  he  says :  No. 

To  the  47th  cross-interrogatory,  he  says :  I  had  no  conversation 
with  McLeod  nor  had  he  with  me  on  the  subject  of  the  Caroline,  nor 
had  I  with  any  other  person  in  his  presence,  nor  had  he  with  any 
person  in  my  presence  any  conversation  relating  to  the  Caroline. 

To  the  48th  cross-interrogatory,  he  says  :  No. 

To  the  49th  cross-interrogatory,  he  says:  Not  to  my  knowledge. 

To  the  50th  cross-interrogatory,  he  says :  No. 

To  the  51st  cross-interrogatory,  he  says :  Seven  were  engaged  and 


starte 

pewa  I 

up  th< 

when 

barkec 

know 

Toi 

pilot  tl 

person 

To 
ansAver 
Tot 
force  SI 
from  th 
other  m 
Toth 
of  the  n 

Sworn,  1 
this  t' 
thousi 


Mr.  Si 
O'Reilly, 
Mr.  ffi 
he  shoult 
allowed  t 
went  exa 
Mr.  Sp, 
can  1 

Mr.  Ha 

reading  o 

be  able  tc 

that  fact, 

Mr.  Spe 

which  was 

Hamilto 

District,  ( 

examined 

named,  de 

To  the  i 

about  nine 

Deputy  Sh 

met  him  w 

sizes,  and  ] 

subject. 

.  To  the  2 

time.    I  r< 


MCLEOD  S   TRIAL. 


161 


and  from 

red,  as  I 
My  im- 
w  of  our 
prevented 
iiave  been 
If  the  few 
wounded, 
no  search 
se,   towed 

lunded  and 
ig  dead  on 
me.  I  did 
;h  a  sword 


,w  some  of 
[  the  vessel 

r  was  there 
board  the 

1  of  the  Car- 
inform  me, 
with  a  great 

know  nor 
anus  Rigby. 


ig,  nor  have 
d  of  by  this 

of  the  sub 

ling  of  the 

■never  made 

lonversation 
Paroline,  nor 

le  with  any 

Caroline. 

mowledge . 
Ingaged  and 


started,  and  all  from  the  same  place,  from  or  near  the  mouth  of  Chip- 
pewa creek,  there  we  put  part  of  our  crew  on  shore  to  track  the  boats 
up  the  Niagara  river  about  a  mile  opposite  the  foot  of  Navy  Island, 
when  those  of  the  crew  who  had  been  tracking  up  the  boats  re-em- 
barked and  thence  we  finally  shoved  ofT  on  the  expedition.  1  do  not 
know  how  many,  or  that  any  got  aground  on  Buckhorn  Island. 

To  the  52d  cross-interrogatory,  he  s:xys  :  No  one  was  employed  to 
pilot  the  boats.  I  know  nothing  of,  nor  have  I  ever  heard  of  any 
person  of  the  name  mentioned  in  this  interrogatory. 

To  the  53d  cross-interrogatory,  he  says  :  Before  answered  in  my 
answers  to  the  12th  and  13th  interrogatory  in  chief. 

To  the  54th  cross-interrogatory,  he  says :  I  did  not  sec  any  armed 
force  stationed  on  shore,  but  heard  tlie  report  of  three  rifles  fired 
from  the  direction  of  the  tavern  towards  us.  I  kn-^w  nothing  of  the 
other  matters  enquired  after  by  this  interrogatory. 

To  the  last  cross-interrogatory,  he  says  :  I  know  nothing  further 
of  the  matters  in  question. 

CHRISTOPHER  BEER. 
Sworn,  taken  and  subscribed  at  the  village  of  Chippewa,  in  Canada, 

this  twentieth  day  of  September,  in  the   year  of  our  Lord  one 

thousand  eight  hundred  and  forty-one,  before  us. 

Adam  Wilson, 
Secker  Brough, 


.J 


Commissioners. 


DEPOSITION  OF  HAMILTON  ROBERT  0  REILLY. 

Mr.  Spencer  then  introduced  the  deposition  of  Hamilton  Robert 
O'Reilly,  and  was  proceeding  to  read,  when 

Mr.  Hall  rose  and  said  that  he  was  informed,  and  believed  that 
he  should  be  able  to  prove  at  a  proper  time,  that  this  deponent  was 
allowed  to  read  the  depositions  of  other  witnesses  before  he  under- 
went examination  himself. 

?.Ir.  Spencer — Do  you  intend  to  set  it  aside  for  that  reason,  if  you 
can  1 

Mr.  Hall — No.  I  do  not  mention  it  with  a  view  to  prevent  the 
reading  of  the  deposition.  The  fact  which  1  mention  I  believ  e  I  shall 
be  able  to  prove,  and  1  state  it  no"',  that  the  jury  may  judge  from 
that  fact,  what  degree  of  credibility  the  deponent  is  entitled  to. 

Mr.  Spencer  then  proceeded  to  read  the  deposition  of  O'Reilly, 
which  was  as  follows : 

Hamilton  Robert  O'Reilly  of  the  town  of  Hamilton,  in  the  Gore 
District,  Canada,  Esquire,  aged  thirty,  being  produced,  sworn  and 
examined  on  behalf  of  the  defendant  in  the  title  of  these  depositions 
named,  deposeth  as  follows  : 

To  the  first  interrogatory  deponent  says :  I  have  knowTi  him  for 
about  nine  years  or  upwards.  I  have  met  him  in  his  character  of 
Deputy  Sheriff  and  transacted  business  with  him,  and  have  casually 
met  him  while  traveling,  at  inns,  and  at  several  sittings  of  the  As- 
sizes, and  I  have  no  doubt  he  is  a  native  of  Scotland  and  a  British 
subject. 

To  the  2d  interrogatory  he  says :  i  do.  I  was  at  Chippewa  at  that 
time.     I  reached  Chippewa  on  the  twenty-sixth  day  of  December, 

21 


'Mm, 


.■  im 


J' 


W'i 


162 


GOULD  S   KEPORTER. 


1837,  and  continued  there  until  some  time  after  the  destruction  of 
the  boat. 

To  the  3d  interrogatory  he  says :  We  embarked  from  near  the 
mouth  of  the  Chippewa  creek.  We  were  upon  the  beach  about  fif- 
teen minutes  before  our  embarkation.  During  that  time  1  was  in  the 
boat  with  the  exception  of  a  short  period  while  in  search  of  oars.  I 
had  not  a  good  opportuuity  of  knowing  all  persons  engaged  in  the 
expedition,  but  speak  positively  with  regard  to  those  persons  in  the 
boat  with  me,  as  it  was  my  duty  to  determine  the  number  by  count- 


ing them. 


To  the  4th  interrogatory  he  says  :  I  know  not  where  Alexander 
McLeod  was  at  the  time  of  the  expedition,  but  I  know  that  he  was 
not  in  the  boat  with  me. 

To  the  5th  interrogatory  he  says :  I  do  not  know  where  he  was  at 
the  time  mentioned  in  this  interrogatory.  He  was  not  within  my 
observation,  and  I  think  I  should  have  seen  him  had  he  been  on  the 
expedition. 

interrogatory  he  says:  I  went  on  the  expedition  in 
the  command  of  Captain  Beer — 1  think  Christopher 


To  the  6th 
a  boat  under 
Beer. 

To  the  7th 
boat  in  which 


interrogatory  he  says :  I  saw  all  the  persons  in  the 
1  went.  I  can  say  positively  that  McLeod  was  not  in 
the  boat  in  which  I  went  on  its  way  to  Schlosser.  I  did  not  see  hini 
on  my  way  from  the  Canada  shore  to  Schlosser. 

To  the  8th  interrogatory  he  says :  I  did.  I  was  on  board.  I  be- 
lieve 1  was  on  every  part  of  the  deck^ — in  the  Captain's  state  room — 
and  in  the  fire-house  or  room.  I  went  on  board  at  the  same  time 
with  the  other  assailants.  I  first  left  the  Caroline  with  the  other 
assailants,  afterwards  returned  on  board  with  part  of  my  own  boat's 
crew  to  lift  the  Caroline's  anchor.  To  the  last  part  of  this  interrog- 
atory I  can  only  say  I  did  not  see  the  said  Alexander  McLeod  among 
the  assailants  at  any  time  during  the  attack  on  the  Caroline. 

To  the  9th  interrogatory  he  says  :  I  have  no  personal  knowledge 
of  the  circumstances  attending  the  transaction  inquired  after  by  this 
interrogatory. 

To  the  10th  interrogatory  he  says :  I  saw  a  majority  of  the  per- 
sons engaged  in  the  destruction  of  the  Caroline  upon  their  landing 
upon  the  Canada  shore,  or  immediately  afterwards.  1  did  not  see 
Alexander  McLeod  among  them.  I  did  not  see  the  said  Alexan- 
der McLeod  among  them  at  any  time  that  night,  and  I  have  no  re- 
collection of  seeing  him  any  where  that  night. 

To  the  11th  interrogatory  he  says  :  I  believe  seven  boats  started — 
five  reached  her.  I  think  the  five  boats  returned  about  one  and  the 
same  time. 

To  the  12th  interrogatory  he  says :  I  know  Sir  Allan  N.  McNab. 
I  saw  him  standing  on  the  shore  of  the  Chippewa  creek  when  the 
expedition  started.  I  believe  the  expedition  was  undertaken  by 
command  of  Sir  Allan  N.  McNab  who  was  in  command  of  the  Brit- 
ish forces  upon  the  frontier  at  that  time.  I  heard  him  give  no  di- 
rections, but  saw  him  in  conversation  with  Captain  Drew  immedi- 


reside 
ed  thi 
To 
and  Ja 
an  inc 
attach( 
er  unc 
Royal 
"  Rose 

To 
^¥cLeo 
Januar' 
line  I 
ticular 

To 
lection 
ing  of  1 
Tot 
never  t( 
he  ever 
To  tl 
with  M( 
Toth 
toJd  me 
that  he 
before 
derived 
Island, 
pressed 
red  on 
turned. 

Toth^ 
of  my  re 


"it^. 


t* 


% 


'^m 


I 


MCLEOD  S   TRIAL. 


163 


uction  of 

near  the 
about  fif- 
vas  in  the 
f  oars.     I 
sd  in  the 
)ns  in  the 
by  count- 
Alexander 
lat  he  wfis 

;  he  was  at 
within  my 
een  on  the 

pedition  in 
Christopher 

3ons  in  the 
I  was  not  in 
not  see  him 

loard.  1  be- 
itate  room — 
e  same  time 
h  the  other 
y  own  boat's 
lis  interrog- 
Leod  among 

line. 

1  knowledge 
after  by  this 

If  of  the  per- 

their  landing 

did  not  see 

said  Alexan- 

have  no  re- 

)ats  started — 
one  and  the 


In  N.  McNab. 
ek  when  the 
tidertaken  by 
A  of  the  Brit- 
Im  give  no  di- 
Vew  immedi- 


ately before  the  departure  of  the  expedition.     I  recognized  Sir  Allan 
.\.  McNab,  then  Colonel,  as  being  in  command. 

'I'o  the  13th  interrogatory  he  says:  Captain  Drew  was  in  com- 
mand of  the  expedition,  and  I  am  satisfied  he  assumed  such  command 
under  the  order  of  Sir  Allan  N.  McNab.         • 

To  the  last  interrogatory  he  says  :  Nothing  farther  oco'irs  to  m^ 
touching  the  matters  in  question  than  what  I  have  already  stated  i>. 
answer  to  other  interrogatories. 

H.  R.  O'REILLY. 
Sworn,  taken  and  subscribed  this  17th  .day  of  September,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  forty-one,  at 
the  town  of  Hamilton,  Canada,  before  me, 

Secker  Brougii,  Commissioner. 

Answers  to  Interrogatories  by  way  of  Cross  Examhiation. 

The  said  Hamilton  Robert  0''Reilly  in  answer  to  the  first  cross-in- 
terrogatory says  :  I  reside  in  the  town  of  Hamilton,  Canada.  I  have 
resided  there  since  June,  1829.  I  am  a  native  of  Canada.  1  am  pass- 
ed thirty  years  of  age.     I  am  a  Barrister  at  Law. 

To  the  2d  cross-interrogatory  he  says :  I  held  in  December,  1S37, 
and  January,  1838,  the  temporary  rank  of  lieutenant  at  Chippewa  in 
an  independent  volunteer  company.  I  was  for  a  few  days  at  first, 
attached  to  the  land  forces  and  was  afterwards  removed  to  a  schoon- 
er under  the  command  of  Lieutenant  or  Captain  Graham  of  t!ie 
Royal  Navy.  The  schooner  referred  to  was  at  that  time  called  the 
"  Rose."     I  still  held  the  temporary  rank  above  referred  to. 

To  the  third  cross-interrogatory  he  says:  I  saw  Alexander 
McLeod  three  or  four  times  during  the  months  of  December  and 
January.  But  whether  before  or  after  the  destruction  of  the  Caro- 
line I  cannot  state.  Nor  can  I  state  with  certainty  the  days  or  par- 
ticular places. 

To  the  4th  cross-interrogatory  he  says :  To  the  best  of  my  recol- 
lection I  never  conversed  with  McLeod  on  the  subject  of  the  burn- 
ing of  the  Caroline  or  heard  him  speak  on  the  subject. 

To  the  5th  cross-interrogatory  he  says :  To  my  recollection  he 
never  told  me  he  had  been  at  Buffalo  and  seen  the  Caroline,  nor  did 
he  ever  say  anything  to  me  about  the  Caroline. 

To  the  6th  cross-interrogatory  he  says :  I  never  went  in  a  boat 
with  McLeod  around  Navy  Island. 

To  the  7th  cross-interrogatory  he  says :  McLeod,  I  think,  never 
told  me  he  went  around  Navy  Island,  but  I  am  under  the  impression 
that  he  did  go  round  or  partly  around.  I  cannot  say  whether  it  was 
before  or  after  the  destruction  of  the  Caroline,  nor  can  I  say  how  I 
derived  the  impression.  I  believe  the  object  was  to  reconnoitre  the 
Island.  I  do  not  know  who  went  with  him.  If  he  went,  as  I  am  im- 
pressed he  went,  he  went  in  a  small  boat.  I  cannot  say  what  occur- 
red on  his  passage,  nor  how  long  he  was  absent,  nor  when  he  re- 
turned. 

To  the  8th  cross-interrogatory  he  says :  he  never  did  to  the  best 
of  my  recollection. 


W'^A 


M 


I 


h 


*■;;.    .  ''^; 


iff.":  ;.4iC,. , ; 


■  ^ 


I 


■-■;/•■ 


m 


GOULD  3   REPORTER. 


To  the  9th  cross  interrogatory  he  says  :  I  first  knew  that  the  de- 
struction of  the  Caroline  was  contemplated  when  we  set  olF  from  the 
shore,  when  Captain  Drew  stated  in  the  boats  that  that  was  the  ob- 
ject of  tlie  expedition ;  it  did  not  occur  to  me  at  all ;  I  never,  that  I 
can  recollect,  spoke  to  McLeud  on  the  subject ;  I  believe  he  was  not 
present  when  it  was  communicated  to  me  j  my  conviction  is  that  he 
was  not  present ;  nor  did  McLeod  know  of  it  to  my  knowledge.  I 
may  be  under  a  misapprehension  as  to  Captain  Drew  stating  tiie  ob- 
ject of  the  expedition,  it  may  have  been  Captain  Beer  ;  I  am  inclined 
to  think  it  was  Captain  Drew. 

To  the  10th  cross  interrogatory  he  says :  I  first  discovered  she 
was  at  Schlosser  when  we  reached  within  sight  of  her ;  when  receiv- 
ing our  orders  on  our  passage  we  were  told  by  Captain  Beer,'  that 
ahe  would  probably  be  on  her  passage  from  Schlosser  to  Navy  Island  ; 
JMcLeod  never  so  informed  me.  I  commenced  my  preparations  for 
the  expedition  about  two  hours  before  we  embarked ;  not  knowing 
at  the  time  the  object  of  the  expedition  ;  immediately  after  the  return 
of  the  expedition  I  went  to  Davis's  tavern,  then  to  visit  Lieutenant 
McCormick  and  then  to  my  quarters. 

To  the  11th  cross  interrogatory  he  says  :  I  have  no  distinct  recol- 
lection, but  think  it  probable  that  I  was  at  Davis's  tavern  the  day  af- 
ter the  night  of  the  burning  of  the  Caroline  ;  I  do  not  recollect  to 
have  seen  McLeod  there  j  on  the  1st  of  January  I  was  at  Queenston  ; 
I  cannot  recollect  to  have  seen  him  at  any  particular  day  at  Davis's 
tavern,  nor  at  any  time  to  have  conversed  with  him  about  the  burn- 
ing of  the  Caroline. 

To  the  12th  cross  interrogatory  he  says :  I  was  present  at  the 
burning  of  the  Caroline  at  Schlosser  at  the  time  mentioned  in  this  in- 
terrogatory. I  was  concerned  in  the  expedition  and  embarked  with  it. 
A  good  many  persons  were  present  at  the  embarkation,  but  I  cannot 
form  any  idea  of  the  number. 

To  the  13th  cross  interrogatory  he  says:  to  the  best  of  my  judg- 
ment, there  were  seven  boats  with  eight  in  each  boat ;  I  think  I  was 
personally  acquainted  with  all  or  nearly  all  who  went  on  the  enter- 
prise ;  I  was  one  of  them  ;  I  think  nine  started  with  the  boat  in  which 
I  went — one  of  whom  was  disabled  before  we  left  the  shore  of  the 
river  and  remained  on  shore.  We  started  at  the  mouth  of  the  Chip- 
pewa Creek  and  tracked  up  the  river  some  distance.  I  was  on  the 
Caroline  and  assisted  to  light  the  fire  in  the  fire-room. 

To  the  14th  cross  interrogatory  he  says  :  I  believe  they  were  jolly 
boats  or  cutters  and  such  as  are  usually  attached  to  steamboats  and 
schooners.  I  think  they  were  nearly  all  of  the  same  size  and  de- 
scription. I  think  some  of  them  were  pulled  with  six  oars  and  some 
with  four.  I  believe  seven  boats  started  and  five  reached  the  Caro- 
line. 

To  the  15th  cross  interrogatory  he  says :  I  was  personally  ac- 
quainted with  all  or  nearly  all.  I  cannot  swear  that  I  recognized  the 
face  of  each  one  who  Avent  in  the  expedition. 

To  the  16th  cross  interrogatory  he  says :  I  knew  all  who  were  in 
the  same  boat  with  me  ;  I  recognized  every  one  of  them;  cannot 
swear  that  I  spoke  to  all  of  them  individually.     Captain  Drew  com- 


11''  i 


the  (le- 
'rom  the 
1  the  ob- 
r,  that  I 

was  not 
s  that  he 
ledge.  1 
g  the  oh- 
\  incliaed 

ered  she 
;n  receiv- 
eer,'  that 
:y  Island  ; 
ations  for 
knowing 
the  return 
^lieutenant 

inct  recol- 
Lhe  day  af- 
jcoUect  to 
^ueenston ; 
at  Davis's 
t  the  burn- 
sent  at  the 
I  in  this  in- 
fcd  with  it. 
ut  1  cannot 

f  my  judg- 
think  I  was 
the  enter- 

lat  in  which 
,ore  of  the 
if  the  Chip- 
was  on  the 

were  jolly 

iboats  and 

|ze  and  de- 

Irs  and  some 

the  Caro- 

Isonally   ac- 
losnized  the 

[ho  were  in 

\\-n ;    cannot 

Drew  com- 


MCLEOD  S   TRIAL. 


165 


manded  the  expedition  and  Captain  or  Lieutenant  Beer  commanded 
the  boat  in  which  I  was. 

To  the  17th  cross  interrogatory  he  says :  I  returned  in  the  same 
boat  in  which  I  embarked,  with  the  same  persons  and  I  am  inclined 
to  think  another  person  named  Richard  Arnold. 

To  the  18th  cross  interrogatory  he  says :  Only  five  of  the  boats 
which  started  reached  the  Caroline,  two  failed,  Lieutenant  Battersby, 
commanded  one  of  those  which  failed  ;  I  don't  know  who  command- 
ed the  other  ;  they  returned  to  the  Canada  shore  ;  1  believe  those 
which  reached  the  Caroline  arrived  nearly  at  the  same  time — Captain 
Drew's  boat  reached  first,  a  few  moment's  difference. 

To  the  19th  cross  interrogatory  he  says :  I  do  not  know  that  there 
was  any  one  of  that  name  engaged  in  the  expedition. 

To  the  20th  cross  interrogatory  he  says :  The  expedition  did  not 
embark  at  any  pier  or  wharf,  but  from  the  bank  of  the  Chippewa  Creek. 

To  the  21st  cross  interrogatory  he  says  :  The  boats  were  near 
each  other  when  they  started,  and  started  as  nearly  at  the  same  time 
as  they  could,  to  enable  them  to  track  up  the  Niagara  river — the  place 
where  the  boats  were  lying  cannot  properly  be  called  a  landing  place, 
but  they  lay  near  each  other. 

To  the  22d  cross  interrogatory  he  says :  I  think  the  boats  which 
reached  thn  C.iroline  returned  at  the  same  time,  nearly  at  the  same 
time  and  place.  I  did  not  see  or  recognise  all  the  persons  disembark, 
whom  I  saw  embark. 

To  the  23d  cross  interrogatory  he  says  :  I  believe  none  of  the  per- 
sons composing  the  expedition  belonged  to  the  regular  army,  then 
upon  full  pay,  and  but  three  or  four  naval  officers  who  were  on  half- 
pay,  otherwise  they  were  militia  volunteers.  They  were  not  drafted 
or  levied  by  military  orders  ;  they  came  as  volunteers  ;  I  think  they 
were  collected    in  parties,  and  so  went  into  their  respective  boats. 

To  the  24ith  cross  interrogatory  he  says :  It  was  not  displayed  in 
any  military  order  except  as  mentioned  in  my  answer  to  the  last  pre- 
ceding interrogatory.  I  did  not  see  it  displayed  or  paraded  in  any 
military  form  after  its  disembarkation. 

To  the  25th  cross  interrogatory  he  says :  They  were  dressed  in 
usual  and  customary  clothing,  and  in  their  own  clothing,  and  not  in 
any  military  or  naval  uniform ;  I  am  unable  to  give  any  particular 
description  of  their  hats,  caps,  or  coats. 

To  the  26th  cross  interrogatory  he  says  :  The  party  was  generally 
armed  with  swords,  sabres,  cutlasses  and  pistols.  1  cannot  state 
where  the  arms  were  generally  procured,  I  got  mine  at  the  quarters 
of  the  Naval  Brigade. 

To  the  27th  cross  interrogatory  he  says :  After  the  expedition  re- 
turned I  think  the  force  dispersed  to  their  respective  quarters.  I  did 
not  see  them  assemble. 

To  the  28th  cross  interrogatory  he  says:  I  think  the  force  disem- 
barked between  the  hours  of  one  and  two  o'clock  in  the  morning.  I 
think  it  wias  not  moonlight,  the  night  was  neither  very  dark  nor  light. 
1  think  the  force  after  its  return  dispersed  to  quarters,  in  and  about 
the  village  of  Chippewa  j  I  am  not  aware  whether  they  were  together 
at  sunrise  or  not  j  I  was  asleep  at  that  hour.     I  do  not  recollect  to 


^ 


^&-' 


■f'^' 


.%. 


n! 


1' 


"lit!: 


■t.^,5i!'? 


i,.,      tjl   i.'W"' 


•:  ill!.! 


■si'    ii'-i 

',S      ■■!>#  ' 

1 1st 


I''  i 


■M: 


il 


166 


GOULD  S   UEPORTEK. 


have  seen  them  together  since  as  a  separate  force,  or  any  part  of  it. 
I  think  the  arms  were  given  up  to  the  Naval  Brigade. 

To  the  29th  cross  interrogatory  he  says :  I  think  at  between  ten 
and  eleven  o'clock. 

To  the  30th  cross  interrogatory  he  says :  I  was  not  wounded  nor 
was  any  one  of  the  assailing  party  killed.  But  two  of  the  assailing 
party  to  my  knowledge  were  wounded,  but  have  understood  a  third 
was  wounded.  ,♦>.--)'• 

To  the  31st  cross  interrogatory  he  says:  When  approaching  the 
boat  Caroline  I  ^  .rd  the  sentry  on  board  at  the  after-gangway  chal- 
lenge twice  or  thrice  and  ask  for  the  countersign.  I  heard  him  say 
give  me  the  countersign  or  I  will  fire,  and  I  think  discharged  a  shot, 
I  am  not  personally  aware  of  any  further  resistance  by  persons 
belonging  to  the  Caroline.  I  saw  no  weapons  with  any  of  the  persons 
belonging  to  the  Caroline  except  the  sentry.  1  saw  several  persons 
leave  the  Caroline  for  the  American  shore,  but  \  could  not  see 
whether  they  were  armed  or  not. 

To  the  32d  cross  interrogatory  he  says :  I  cannot  positively  state 
that  any  more  than  one  shot  was  fired  from  the  boat  Caroline,  and 
cannot  state  positively  whether  that  was  a  gun  shot  or  a  pistol.  I 
saw  no  swords  or  pikes  or  other  military  weapons  used  by  the  per- 
sons belonging  to  the  Caroline.  I  saw  no  arms  of  any  kind  except 
that  had  by  the  sentry,  nor  any  military  stores  or  munitions  of  war. 

To  the  33d  cross  interrogatory  he  says :  I  saw  none  of  the  people 
belonging  to  the  Caroline  killed  or  wounded.  I  neither  killed  nor 
wounded  any  one.  I  did  not  discharge  a  gun  or  pistol,  nor  did  I 
strike  any  one  with  a  sword  or  pike  or  any  other  weapon. 

To  the  34th  cross  interrogatory  he  says:  I  do  not  know,  nor 
have  I  reason  to  believe  that  any  body  was  on  board  of  the  Caroline 
when  she  was  cut  loose  and  sent  over  the  Falls. 

To  the  35th  cross  interrogatory  he  says  :  I  did  not  go  ashore  or 
into  the  warehouse  at  Schlosser,  nor  do  I  know  that  any  of  the  at- 
tacking party  did. 

To  the  36th  cross  interrogatory  he  says  :  I  did  not  take  or  carry 
away  any  article  whatever,  as  mentioned  in  this  cross  interro- 
gatory. I  believe  there  were  one  or  two  mattresses  taken  from  the 
Caroline  to  Chippewa,  but  I  have  no  personal  knowledge  that  such 
were  talren,  or  any  other  article  whatsoever. 

To  the  37th  cross  interrogatory  he  says  :  I  incline  to  think  I  first 
heard  that  the  steamboat  Caroline  was  coming  down  to,  or  had  come 
down  to  Navy  Island  on  the  day  she  was  destroyed.  I  have  no  dis- 
tinct recollection  who  informed  me,  but  I  think  it  was  either  Mr. 
Harris  of  London  or  Mr.  Cleverley  of  the  same  place,  but  to  my  re- 
collection, Mr.  McLeod  did  not  so  inform  me. 

To  the  38th  cross  interrogatory  he  says  :  I  neither  know  nor  am 
I  aware  of  having  seen  a  person  of  the  name  of  Sylvanus  S.  Rigby, 
but  I  have  heard  that  a  person  by  the  name  of  Rigby  was  taken  prisoner 
on  board  of  the  Caroline  and  brought  to  Chippewa.  I  first  heard  of 
him  either  on  the  night  of  the  destruction  of  the  Caroline  or  the  next 
day.  I  am  not  aware  that  he  was  engaged  in  any  way  in  her  Brit- 
tannic  Majesty's  service,  either  at  the  time  mentioned  in  this  interro- 
gatory or  any  other  time. 


MCLEOD  S    TRIAL. 


167 


ween  ten 


To  the  39th  cross  Interrojrfitory  he  snys :  I  ncer  knew,  saw,  or 
heard  of  him  to  my  knowledge  before  the  destruction  of  the  Caro- 
line. 

To  the  40th  cross  interrogatory  he  says  :  I  never  did. 

To  the  41st  cross  interrogatory  he  says :  I  do  not  know,  nor  have 
I  ever  heard  from  him  that  he  was  on  board  of  the  Caroline. 

To  the  42d  cross  interrogatory  he  says:  I  know  nothing  of  the 
matters  inquired  after  by  this  interrogatory. 

To  the  43d  cross  interrogatory  he  says:  I  never  saw  him  before 
the  attack  of  the  Caroline  or  ever. 

To  the  44th  cross  interrogatory  he  says :  I  know  nothing  of  the 
matters  inquired  after  by  this  interrogatory,  either  from  my  own 
knowledge,  or  from  any  information  derived  from  the  said  Alexander 
McLeod. 

To  the  45th  cross  interrogatory  he  says :  Alexander  McLeod 
never  told  me  nor  any  person  in  my  presence  at  any  time  anything 
respecting  the  subject  matter  of  this  interrogatory. 

To  the  46th  interrogatory  he  says :  I  do  not  know  that  he  remain- 
ed at  Chippewa  that  day,  nor  have  I  heard  him  say  he  had  done  so, 
nor  have  I  ever  heard  him  say  that  he  kept  a  look-out  for  the  Caro- 
line when  she  came  down  to  Navy  Island  or  Schlosser,  nor  have  I 
heard  him  say,  nor  do  I  know  that  he  discovered  her  ;  I  do  not  know 
that  he  kept  a  look-out. 

To  the  47th  cross  interrogatory  he  says:  I  have  no  recollection 
of  any  conversation  had,  of  the  nature  inquired  after  by  this  interro- 
gatory. 

To  the  48th  cross  interrogatory  he  says :  No. 

To  the  49th  cross  interrogatory  he  says :  not  to  my  knowledge, 
nor  have  I  understood  so  from  liim. 

To  the  50th  cross  interrogatory  he  says  :  Never  ! 

To  the  51st  cross  interrogatory  he  says  :  I  think  seven  boats  were 
first  engaged  in  the  expedition.  1  think  they  all  starced  from  Chip- 
pewa Creek  below  the  village,  cannot  say  how  many  grounded  on 
Buckhorn  Island. 

To  the  52d  cross  interrogatory  he  says  :  There  was  no  person  to 
my  knowledge  engaged  to  pilot  the  boats.  I  am  not  aware  that 
any  person  of  the  name  mentioned  in  this  cross  interrogatory  resided 
in  Chippewa  in  1837,  nor  am  I  aware  that  any  one  of  that  name  was 
engaged  in  the  expedition. 

To  the  53d  cross  interrogatory  he  says  :  I  am  not  aware  whether 
the  order  given  by  Sir  Allan  N.  MacNab  was  in  writing  or  verbal,  1  have 
reason  to  believe  it  was  private,  inasmuch  as  the  officers  under  whom 
I  volunteered  assured  me  that  they  were  not  themselves  aware  of  the 
object  of  the  expedition,  until  pushing  off  from  the  shore  of  the 
Niagara  River,  some  distance,  probably  two  hundred  yards,  above 
the  Chippewa  Creek;  I  neither  saw  nor  heard  the  order  given  by  Sir 
Allan  N.  MacNab. 

To  the  54th  cross  interrogatory  he  says :  There  was  one  or  more 
persons  on  shore  near  the  wharf  where  the  Caroline  was  lying. 
Several  shots  were  fired  from  the  shore  upon  us.  Cannot  state  from 
what  particular  quarter  the  shots  proceeded,  but  I  think  from  the  di- 


■  r .  ij 


it  . 


* 

> 


168 


GOULD  S   REPORTER. 


'iv 


rectlon  of  the  tavern.  I  am  not  aware  that  Lieutenant  Elmsley,  or 
any  other  person  was  sent  on  shore  to  protect  the  expedition — nor 
ain  1  aware  that  he  or  any  other  person  went  on  shore. 

T(i  the  last  cross  interrogatory  he  says :  I  do  not  know,  nor  can  1 
say  at  this  the  time  of  my  examination  any  thing  further  touching  the 
)n;itters  in  question,  than  I  have  already  answered  in  previous  inter- 
rogatories. 

H.  R.  O'REILLY. 
Sworn  at  the  town  of  Hamilton  in  Canada,  this  17th  day  of  Septem- 
ber, IS-ll,  before  me, 

Secker  Brough,  Commissioner. 

DEPOSITION   OF   SHEPHERD   MCCORMICK. 

Shepherd  J\IcCormick,  of  the  township  of  London,  in  the  District 
of  ^London,  in  the  Province  of  Canada,  Esq.,  aged  forty-nine  years 
and  upwards,  being  produced,  sworn  and  examined,  on  behalf  of  the 
defenilant,  in  the  title  of  these  depositions  named,  doth  depose  as 
follows,  viz : 

To  the  1st  interrogatory  he  says:  The  first  time  I  ever  saw 
Alexander  McLeod,  was  on  the  night  of  the  28th  of  December,  1837, 
when  ho  was  introduced  to  me  by  Captain  Graham.  I  never  saw 
him  until  the  time  I  have  before  mentioned. 

To  the  2d  interrogatory  he  says :  I  perfectly  recollect  the  time  of 
the  destruction  of  the  Caroline.  I  was  in  Chippewa  at  the  time,  and 
for  some  days  prior  to  it. 

To  the  3d  interrogatory  he  says :  The  persons  who  went  to  des- 
troy the  Caroline,  embarked  at  the  mouth  of  the  Chippewa  river.  I 
think  they  were  standing  there  about  half  an  hour  before  they  em- 
barked. I  was  getting  the  boats  ready.  I  took  the  list  of  the  names 
and  went  round  to  get  volunteers,  by  direction  of  Captain  Drew,  as 
I  was  second  in  command. 

To  the  4th  interrogatory  he  says :  When  the  boats  went  to  destroy 
the  Caroline,  I  do  not  know  where  the  said  McLeod  Avas.  He  was 
not  in  my  boat.  /  did  not  take  down  his  name,  r.nd  am  positive  he 
was  not  of  the  party. 

To  the  5th  interrogatory  he  says  :  I  did  not  see  the  said  Alexander 
McLeod  during  the  time  the  p(  rsons  who  went  to  destroy  the  Caro- 
line were  standing  on  the  beac.i.  He  was  not  with  the  party  I  com- 
manded. 

To  the  6th  interrogatory  he  say  :  When  the  boats  pushed  off  from 
the  Canada  shore  to  destroy  the  Caroline,  I  went  in  one  of  them, 
which  boat  I  commanded. 

To  the  7th  interrogatory  he  says :  I  did  see  all  the  persons  in  the 
boat  I  went  in  from  the  Canada  shore  to  Schlosser.  Alexander 
McLeod  was  not  one  of  them.     I  did  not  see  him  at  all  that  night. 

To  the  8th  interrogatory  he  says :  I  was  the  second  man  on  board 
the  Caroline  on  the  night  of  her  destruction.  I  was  in  different  parts 
of  her.  I  was  put  into  one  of  the  boats  after  I  was  wounded,  before 
the  other  assailants  left  the  Caroline.  I  did  not  see  the  said  Alexander 
McLeod  among  the  assailants.   I  am  positive  he  was  not  one  of  them. 


MCLEOD'S   TRIAL. 


169 


isley,  or 
ion — nor 


nor  canl 
jhing  the 
lus  inter- 


:iLLY. 

I  Septem- 

;sioner. 


e  District 
ine  years 
alf  of  the 
depose  as 

ever  saw 
iber,  1837, 
never  saw 

;he  time  of 
;  time,  and 

ent  to  des- 
^a  river.     I 

they  em- 
the  names 

Drew,  as 

to  destroy 
He  was 
positive  he 

Alexander 
the  Caro- 
rty  I  corn- 
ed off  from 
le  of  them, 

!ons  in  the 
Alexander 
that  night. 
n  on  board 

lerent  parts 

^ed,  before 
.  Alexander 

Ine  of  them. 


I  do  know   Sir  Allan  N. 

expedition  started.     The 

I  did  not  hear  him  give 


To  the  9th  interrogatory  he  says :  I  know  nothing  of  the  matters 
inquired  after  in  this  interrogatory. 

To  the  10th  interrogatory  he  says :  I  was  so  weak  from  the 
wounds  I  had  received,  that  1  cannot  recollect  who  I  saw  on  my 
return. 

To  the  11th  interrogatory  he  says:  Seven  boats  started  in  search 
of  the  Caroline — five  reached  her.  I  cannot  say  how  many  returned 
in  company. 

To  the  12th  interrogatory  he  says : 
McNab.  He  was  on  the  beach  when  the 
expedition  was  undertaken  by  his  command. 
any  directions  with  reference  to  it. 

To  the  13th  interrogatory  he  says :  Captain  Drew  was  in  com- 
mand of  the  expedition.  He  received  his  orders  from  Sir  Allan  N. 
McNab. 

To  the  last  interrogatory  he  says :  Alexander  McLeod  called  on 
me  shortly  after  the  destruction  of  the  Caroline,  and  expressed  his 
regret  that  he  had  not  heard  of  the  expedition,  as  he  would  have 
accompanied  it.  Further  than  this,  I  know  of  nothing  more  that 
may  tend  to  the  benefit  and  advantage  of  the  said  Alexander 
McLeod. 

SHEPHERD   McCORMICK. 

Taken  and  sworn  before  me,  this  20th  day  of  September,  in  the 
year  of  our  Lord,  one  thousand  eight  hundred  and  forty-one,  at 
the  town  of  London,  in  the  District  of  London,  and  Province  of 
Canada. 

J.  H.  Price,  Commissioner. 

Answer  to  the  interrogatories,  by  way  of  cross-examination. 

The  said  Shepherd  McCormick  to  the  first  interrogatory  says : 
I  reside  in  the  township  of  London,  District  of  London,  and  province 
of  Canada,  and  have  resided  there  three  years.  I  am  a  native  of 
Ireland,  of  the  age  of  forty-nine  years,  and  am  a  Lieutenant  in  the 
Royal  Navy. 

To  the  2d  cross-interrogatory  he  says:  I  was  third  in  command  of 
the  Naval  Brigade,  at  Chippewa,  under  Captain  Drew,  until  Captain 
Graham  left,  when  I  was  second  in  command.  I  neither  commanded 
nor  was  attached  to  any  vessel. 

To  the  3d  cross-interrogatory  he  says :  Alexander  McLeod  was 
first  introduced  to  me  on  the  night  of  the  28th  of  December,  1837, 
on  which  night  he  accompanied  me  in  a  boat  round  Navy  Island.  I 
did  not  again  see  him  until  after  the  destruction  of  the  Caroline. 

To  the  4th  cross-interrogatory  he  says :  I  never  did  converse  with 
the  said  Alexander  McLeod,  nor  did  I  ever  hear  him  converse  with 
any  other  person  on  the  subject  of  the  Caroline,  previous  to  her 
destruction. 

To  the  5th  cross-interrogatory  he  says :  The  said  Alexander 
McLeod  never  told  me  any  thing  about  the  Caroline,  previous  to  her 
destruction. 

To  the  6th    cross-interrogatory  he   says :    I  did  go  round  Navy 

22 


i 


mm 

mm 

^:^.    ill'' 


■'*■■» 


I'l  ,' .  1 


I 


(.  i 

i 


no 


GOULD  S    REPORTER. 


Isltind,  very  early  in  the  morninj?  of  the  20th  Daccmber,  1837,  in 
coinpiiny  with  Alexander  McLcod,  to  reconnoitre. 

To  the  7th  crosB-interrofratory  he  snys :  Alexander  McLeod  did 
fro  round  Navy  Island  early  in  the  mornincr  of  the  '29th  December, 
1837.  The  object  way  to  reconnoitre.  He  went  in  a  boat.  I 
accompanied  him.  Thirty-six  cannon  shot  were  fired  at  us  from 
Navy  Island.     We  were  absent  about  four  hours. 

To  the  8th  cross-interrogatory  he  says:  Alexander  McLeod  never 
spoke  to  mo  on  the  subject  of  cutting  out  the  Caroline,  in  case  she 
Hhould  come  down  to  Navy  Island. 

To  the  9th  cross-interrogatory  he  says :  The  plan  for  the  destruc- 
tion of  the  Caroline  was  i'lrnt  communicated  to  me  by  Captain  Drew, 
on  the  evening  of  the  29th  December,  1837.  I  did  not  communicate 
it,  or  any  part  of  it,  to  Alexander  McLeod.  He  was  not  present 
when  it  was  communicated  to  me,  nor  did  he  to  my  knowledge 
know  of  it. 

To  the  10th  cross-interrogatory  he  says:  The  first  time  I  saw  the 
Caroline  was,  during  the  day  of  the  29th  of  December,  1S37,  on  her 
passage  from  Schlosser  to  Navy  Island.  Alexander  McLeod  never 
spoke  to  me  on  the  subject.  We  commenced  our  preparations  to 
attack  her  about  nine  o'clock  of  the  night  of  her  destruction.  On  my 
return,  I  was  carried  to  the  house  of  Mr,  Kirkpatrick  at  Chippewa. 

To  the  11th  cross-interrogatory  he  says  :  I  was  confined  to  my  bed 
from  the  wounds  I  had  received,  and  know  nothing  of  the  matter? 
inquired  after  in  this  cross  interrogatory. 

To  the  12th  cross-interrogatory  he  says :  I  was  present  at  the 
burning  of  the  steamboat  Caroline  at  Schlosser,  on  the  night  of  the 
29th  December,  1837.  I  was  present  at  the  embarkation  of  the  expe- 
dition at  Chippewa,  and  saw  it  embark.  I  cannot  possibly  say  how 
many  persons  were  present  on  the  shore,  or  near  the  place  of  em- 
barkation. 

To  the  13th  cross-interrogatory  he  says :  About  fifty  persons 
embarked  on  the  expedition.  I  was  not  personally  acquainted  with 
all  the  persons  who  entered  the  boats  and  went  on  the  enterprize.  1 
was  one  of  them — there  were  eight  in  my  boat  including  myself.  I 
was  on  board  of  the  Caroline.  I  was  wounded  immediately  after 
getting  on  board,  and  consequently  took  no  part  in  her  destruction. 

To  the  14th  cross-interrogatory  he  says :  The  boats  used  were 
row-boats.  They  were  all  nearly  of  the  same  size  and  description. 
There  were  about  eight  persons  in  each  boat — there  were  seven  boats. 

To  the  fifteenth  cross-interrogatory  he  says  :  I  did  not  know  all 
who  embarked  on  the  expedition,  nor  did  I  see  and  recognize  the 
faces  of  each  one. 

To  the  16th  cross-interrogatory  he  says  :  I  knew  all  who  were  in 
the  same  boat  with  me.  1  spoke  to  and  reeognized  each  one  of 
them.  Captain  Drew  commanded  the  expedition.  I  commanded  the 
boat  that  I  was  in. 

To  the  17th  cross-interrogatory  he  says:  From  the  weak  state  I 
was  in,  I  do  not  recollect  in  what  boat  I  returned. 

To  the  18th  cross-interrogatory  he  says :  All  the  boats  that  em- 
barked in  the  expedition  did  not  reach  the  Caroline — two  failed.    I 


!M 


!i' 


1837, 


III 


Leod  (lid 
)ecember, 
I  boat.  I 
t  lis  from 

leod  never 
I  case  sho 

le  destruc- 
tain  Drew, 
mmunicatc 
ot  present 
knowledge 

3  I  saw  the 
37,  on  her 
Lieod  never 
iirations  to 
ion.  On  my 
Jhippewa. 
d  to  my  bed 
the  matter? 

ssent  at  the 
night  of  the 
of  the  expe- 
bly  say  how 
jlace  of  em- 

ty  persons 
minted  with 
\terprize.  1 
myself.  1 
iiately  after 

destruction, 
used  were 

description. 

seven  boats, 
not  know  all 

cognize  the 

who  were  in 
each  one  of 
timanded  the 

weak  state  1 

its  that  em- 
wo  failed.     1 


MCLEOO's   TRIAL, 


171 


The  boats  that  readied   the 
C'aptain  Drew's  boat  arrived 


ino 


do  not  know  what  became  of  thcin. 
Cnroline  arrived  about  the  same  time. 
(irst. 

To  the  1  nth  cross-interrogatory  he  says :  There  was  no  man  in 
the  expedition  of  the  name  of  JMcLeod,  to  my  knowledge. 

To  the '20th  cross-interrogatory :  The  expedition  embarked  at  the 

»uth  of  the  Chippewa  river.     'Ihere  was  no  wharf  or  pier. 

To  the2l8t  cross-iiitcrrogatorv  he  says:  The  boats  wore  all  lying 
on  the  beach  together.     They  afl  started  at  the  Haiiio  time. 

To  the  22d  cross-interrogatory  he  says:  1  know  notiiing  o( 
whnt  took  place  at  the  disembarkation,  nor  did  I  recognize  any  one, 
owing  to  the  exceeding  weak  state  in  which  I  was. 

To  the  23d  cross-interrogatory  he  says  :  The  persons  composing 
tlie  expedition  were  civilians,  with  the  exception  of  a  few  naval  offi- 
cers. The  men  came  as  volunteers  ;  they  marched  up  and  entered 
the  boats  in  a  body. 

To  the  2 1th  cross-interrogatory  he  says  :  The  force  was  not  dis- 
played in  any  military  form  previous  to  its  embarkation  ;  and  as  1 
have  already  stated,  I  cannot  say  what  took  place  at  its  disembark- 
alifii. 

To  the  23th  cross-interrogatory  he  says :  The  men  composing 
the  expedition  were  dressed  in  their  ordinary  clothing — they  had  no 
particular  uniform. 

To  the  2Gth  cross-interrogatory  he  says :  The  party  were  armed 
with  swords  and  pistols,  some  of  which  belonged  to  the  party  them- 
selves ;  the  remainder  were  obtained  from  the  Queen's  stores. 

To  the  27th  cross-interrogatory  he  says:  As  I  have  already  stated, 
I  know  nothing  of  what  took  place  after  the  expedition  returned. 

To  the  28th  cross-interrogatory  he  says:  I  don't  recollect  the  hour 
at  which  the  expedition  disembarked.  The  night  at  the  time  we 
embarked  was  very  dark.  I  was  confined  to  my  bed  for  three  months, 
and  therefore  cannot  say  what  became  of  the  force  after  its  disem- 
barkation. 

To  the  29th  cross-interrogatory  he  says :  The  expedition  embarked 
about  ten  o'clock  at  night. 

To  the  .'JOth  cross-interrogatory  he  says :  I  was  desperately 
wounded  in  the  attack  on  the  Caroline.  I  believe  that  no  one  was 
killed. 

To  the  31st  cross-interrogatory  he  says:  There  was  a  strong  re- 
sistance for  a  short  period,  made  by  the  persons  on  board  of  the 
Caroline  ;  they  were  armed  with  pistols  and  swords. 

To  the  32d  cross-interrogatory  he  says  :  They  did  discharge  guns 
and  pistols  and  used  swords,  but  not  pikes.  I  am  not  aware  that  the 
boat  was  armed.  I  have  no  knowledq;e  of  any  arms,  military  stores, 
or  amunition,  or  provisions,  or  munitions  of  Avar  of  any  kind  or  de- 
scription being  found  on  board  the  Caroline. 

To  the  33d  cross-interrogatory  he  says  :  I  believe  one  of  the  per- 
sons found  on  board  the  Caroline  was  killed.  His  death  was  caus- 
ed by  a  blow  from  me  immediately  after  he  had  wounded  me.  I  fired 
neither  gun  nor  pistol. 

To  the  34<th  cross-interrogatory  he  says :  I  do  not  think  there  was 


I 


t 

•'I' 


;:^ 


':'^^\ 


'h  ■■'I' 


i! 


M^ 


\n 


OorLD'S   REPORTSR. 


^f 


\i- 


-K- 


a  livinjr  crentiirc  on  board  the  Caroline  when  she  wn»  cut  loose  nnd 
Kent  ovpr  the  Kails. 

'l\)  the  .'jr»th  (TftsM-intf-rrofrntory  he  «nyH :  I  did  not  inyHcIf  go  on 
shore,  nor  mn  I  awiir«^  thiit  any  otheri*  of  the  piirty  did. 

To  the  :{'»ili  cross-intcrronratory  he  Hays:  The  only  articles  tnken 
IVoru  the  Caroline  were  two  hhuiII  mattresses  on  which  1  wati  laid,  at 
least  to  the  best  of  my  knowledpe. 

To  the  ;nth  rross-intcrrocotory  ho  siiys:  I  never  heard  of  the 
steamboat  Carohne  coming  down  to  Schlosser  until  1  huw  her,  nor 
did  Alexander  iMcLeod  ever  speak  to  me  on  the  subject. 

To  the  ;{Sth  cross-interrogatory  he  says:  I  never  heard  of  or  saw 
such  a  person  as  Sylvnnus  S.  Kigby. 

To  the  3!)th  cross-interrogatory  he  says :  I  never  saw  or  heard  of 
him. 

To  the  K)lh  cross-interrogntory  he  says :  I  never  did. 

To  the  Ust  cross-interrogatory  he  says :  I  never  heard  or  knew 
of  such  a  person. 

To  the  4"id  cross-interrogatory  he  says :  I  know  nothing  of  the 
matters  incpiired  after  in  this  cross  interrogatory. 

To  the '13d  cross-iiiterrogntory  he  says:  1  neither  knew  him  be- 
fore or  after  the  attack  on  the  Caroline. 

To  the  'M-tli  cross-interrogatory  he  says  :  1  know  nothing,  nor  have 
ever  heard  Alexander  McLeod  speak  on  the  subject  inquired  after 
in  this  cross-interrogatory. 

To  the  ^.^th  cross-interrogatory  ho  says :  Alexander  McLeod 
never  spoke  to  me,  nor  did  I  ever  hear  him  speak  on  the  subject  of 
tlie  Caroline  previous  to  her  destruction. 

To  the  4Kth  cross-interrogatory  he  says  :  I  know  nothing  of  the 
matters  inquired  after  in  this  cross-interrogatory. 

To  the  47th  cross-interrogatory  he  says  :  Alexander  McLeod 
never  had  any  conversation  with  me  on  the  subject  of  the  Caroline, 
nor  had  I  with  any  other  person  in  his  presence,  nor  had  he  with 
any  other  person  in  my  presence  previous  to  her  destruction. 

To  the  48th  cross-interrogatory  ho  says :  I  never  did. 

To  the  49th  cross-interrogatory  he  says  :  1  am  not  aware  that  he 
ever  did. 

To  the  50th  cross-interrof';atory  he  says  :  I  never  did  hear  Alex- 
ander McLeod  say  that  he  was  present  at  the  burning  of  the  Caro- 
line, but  as  I  have  before  stated,  he,  subsequently  to  her  destruction, 
expressed  his  regret  to  me  that  he  had  not  been  informed  of  the  in- 
tended attack  upon  her  for  he  would  have  been  one  of  the  party. 

To  the  51st  cross-interrogatory  he  says:  Seven  boats  were  first 
engaged  for  the  expedition.  None  started  from  Chippewa  village. 
Seven  started  from  near  the  mouth  of  the  Chippewa  river.  I  do  not 
know  how  many  got  aground  on  Buckhorn  Island. 

To  the  52d  cross-interrogatory  he  says  :  No  person  was  employed 
to  pilof  the  boats.  I  never  heard  of  such  persons  as  those  mention- 
ed in  this  cross-interrogatory. 

To  the  53d  cross  interrogatory  he  says :  I  heard  no  orders  given 
by  Sir  Allan  N.  McNab,  nor  did  I  see  any  in  writing  given  by  him. 

To   the  54th  cross-interrogatory  he  says :  I  was  wounded  so  im- 


NOLKUlJ  ^i   TKIAL. 


173 


incdiutuly  ul'tcr  buardiitg  llmt  i  do  not  know  wliut'  took  place  after- 
wiirds. 
Tu  tlic  last  cross-interrogatory  ho  Hnyx  :  F  do  not. 

SHKPHERD  McCOKMICK. 
Taken  and  sworn  before  mo,  this  twonticth  day  of  September,  in 
the  year  of  our  Lord  one  thowHand  ci^jht  hundred  and  forty-one, 
at  ilio  town  of  London,  in  the  diHtriut  of  London,  and  Province 
of  Canada. 

J.  H.  I'uicK,  ConunisHioner. 


^ 

1 

1  i 

• 

fp 

\ 

fi: 

I 

1 

• 

1 

i    ,'\ 


DKI'OSITION  OF   FREDERICK    CI.EVKflLY. 

Frederick  Cleverly,  of  llie  town  of  London,  in  the  district  of  Lon- 
don in  the  Province  of  Canada,  Barrister  at  Law,  njred  twenty-six 
years  and  upwards  beinjT  produced,  sworn,  and  examined  on  the 
behalf  of  the  defendant  in  the  title  of  these  interrogatories  named, 
cloth  depone  as  follows,  viz  : 

To  the  1st  interrogatory  he  says :  The  first  time  I  ever  met  Alex- 
ander McLood  was  on  the  evening  of  the  '28th  of  December,  1837, 
when  he  was  preparing  to  accompany  Captain  Graham  around  Navy 
Island.  He  remained  during  the  greater  part  of  the  night  at  our 
([iiarters.  I  was  present  when  he  embarked  ant'  wiien  he  returned, 
but  have  not  seen  him  since. 

To  the  2d  interrogatory  he  says :  I  perfectly  recollect  the 
time  of  the  destruction  of  the  Caroline.  I  was  in  Chippewa  about 
that  time  and  I  had  been  there  three  days  when  it  took  place. 

To  the  3d  interrogatory  he  says :  The  persons  who  went  to  de- 
stroy the  Caroline  embarked  at  the  Chippewa  river  near  its  mouth. 
They  were  standing  on  the  bank  about  half  an  hour  before  starting. 
I  was  there  during  the  time  and  saw  most  of  the  men  embark. 

To  the  Ith  interrogatory  he  says  :  When  the  persons  who  went 
to  destroy  the  Caroline  embarked  I  do  not  know  where  the  said 
Alexander  McLeod  was.     He  was  not  in  the  boat  with  me. 

To  the  5th  interrogatory  he  says :  I  have  never  seen  the  said 
Alexander  McLeod  since  the  morning  of  the  29th  of  December,  1837, 
when  he  returned  from  the  expedition  round  Navy  Island  with  Cap- 
tain Graham. 

To  the  6th  interrogatory  he  says  :  When  the  boats  pushed  off  to 
destroy  the  Caroline  I  went  in  the  boat  commanded  by  Lieutenant 
Beer  of  the  Royal  Navy. 

To  the  7th  interrogatory  he  says :  I  saw  all  the  persons  in  the 
boat  I  went  in  from  Canada  to  Schlosser.  Alexander  McLeod  was 
not  one  of  them.  1  did  not  see  him  on  my  way  from  the  Canada 
shore  to  Schlosser. 

To  the  8th  cross  interrogatory  he  says :  I  was  on  board  of  the 
Caroline  on  the  night  of  her  destruction.  I  went  into  most  parts  of 
her.  I  boarded  her  at  the  same  time  as  the  other  assailants,  and 
left  her  about  the  same  time  that  they  did.  I  did  not  see  Alexander 
McLeod  among  the  assailants,  nor  do  I  believe  he  was  one  of  them. 

To  the  ninth  interrogatory  he  says :  1  know  nothing  of  any  per- 
son having  been  killed  during  the  attack  upon  the  Caroline  and  having 
been  conveyed  upon  the  dock  at  Schlosser  and  left  remaining  there. 


i 

1 

iSt' '' 

■ili 

j 

m 

11 

174. 


Gould's  repobter. 


To  ihe  10th  interrogatory  he  says  :  I  saw  the  men  of  the  five  boats 
engaged  in  the  attack  on  the  Caroline  when  they  hindecl  on  the  Can- 
ada shore  on  their  return  from  Schlosser.  I  did  not  see  Alexander 
.McLeod  among  them,  and  /  believe  he  was  not  there.  I  did  not  see 
him  at  all  during  the  night,  nor  have  I  seen  him  since. 

To  the  11th  interrogatory  he  says:  Seven  boats  started  in  search 
of  the  Caroline — five  reached  her.  Five  reached  the  shore  about 
the  same  time  on  their  return. 

To  the  12th  interrogatory  he  says :  I  know  Sir  Allan  N.  McNab. 
He  was  on  the  bank  of  the  Chippewa  river  when  the  expedition 
started.  It  was  undqftaken  by  his  command.  I  heard  him  give  no 
directions  with  reference  to  it. 

To  the  13th  interrogatory  he  says :  Captain  Drew  was  in  com- 
mand of  the  expedition.  He  received  his  orders  from  Sir  Allan  N. 
McNab. 

To  the  last  interrogatory  he  says :  I  saw  all  the  men^who  com- 
posed the  expedition.     Alexander  McLeod  was  not  one  of  them. 

FREDERICK  CLEVERLY. 

Taken  and  sworn  before  me,  this  twenty-first  day  of  September  in 
the  year  of  our  Lord  one  thousand  eight  hundred  and  forty-one, 
at  the  town  of  London,  in  the  district  of  London,  in  Canada. 

J.  H.  Price,  Commissioner. 

^^nswers  to  the  Interrogatories  by  way  of  Cross  Examination. 

The  said  Frederick  Cleverly,  to  the  1st  cross-interrogatory  says  : 
I  reside  in  the  town  of  London,  in  the  District  of  London,  and 
Province  of  Canada.  I  have  resided  there  between  six  and 
seven  years.  I  am  a  native  of  England,  and  am  a  Barrister  at 
Law. 

To  the  2d  cross-interrogatory  he  says :  I  was  acting  as  clerk  to 
Captain  Drew  in  December,  1837.  I  was  neither  in  command  of  or 
attached  to  any  vessel. 

To  the  3d  cross-interrogatory  he  says:  I  saw  Alejjander  McLeod 
on  the  evening  of  the  the  29th  of  December,  1837.  I  never  saw 
him  before  nor  have  I  ever  seen  him  since. 

To  the  4th  cross-interrogatory  he  says  :  I  never  spoke  to  Alexan- 
der McLeod  on  the  subject  of  the  Caroline,  nor  did  I  ever  hear  him 
speak  on  the  subject. 

To  tne  5th  cross-interrogatory  he  says :  He  never  did. 

To  the  6th  cross-interrogatory  he  says :  I  never  did  go  round 
Navy  Island  in  a  small  boat  with  Alexander  McLeod. 

To  the  7th  cross-interrogatory,  he  says  ;  Alexander  McLeod  did 
ijo  round  Navy  Island  on  the  morning  of  the  29th  of  December, 
1837,  in  company  with  Captain  Graham  and  Lieutenant  McLeod. 
Their  object  was  to  reconnoitre.  They  were  absent  about  four 
hours. 

To  the  8th  cross-interrogatory,  he  says :  He  never  did. 

To  the  9th  cross-interrogatory,  he  says  :  The  plan  for  the  destruc- 
tion of  the  Caroline  never  occurred  to  me  ;  it  was  first  communica- 
ted to  me  on  the  evening  of  the  29th  December,  1837.  Alexander 
McLeod  was  not  present,  nor  did  I  ever  communicate  it  to  him. 


*  uiu  no 
diately 


MCLEOD  S   TRIAL. 


175 


To  the  10th  crops-interrosratory,  he  says  :  I  saw  the  Caroline  cross 
once  daring  the  day  of  the  29th  December,  1837,  from  Navy  Island 
lo  the  American  shore.  I  did  not  see  her  at  Schlosser  until  I  went 
to  attack  her.  Alexander  McLeod  never  spoke  to  me  of  the  Caro- 
line. We  commenced  preparations  for  the  attack,  on  the  evening- 
of  the  29th  December,  1837.  After  the  expedition  returned,  I 
went  to  the  quarters  of  Capt.  Drew,  for  the  purpose  of  procuring  a 
siirj^eon  for  Lieutenant  McCormick. 

To  the  11th  cross-interrogatory,  he  says  :  I  was  not  in  any  tavern 
in  Chippewa  after  the  burning  of  the  Caroline,  nor  did  I  ever  see  Al- 
exander McLeod  after  her  destruction. 

To  the  12th  cross-interrogatory,  he  says :  I  was  at  the  burning  of 
the  steamboat  Caroline  at  Schlosser,  on  the  29th  December,  1837.  I 
was  at  the  embarkation  of  the  expedition.  There  were  a  number  of 
persons  standing  on  the  shore.     I  cannot  possibly  say  how  many. 

To  the  13th  cross-interrogatory,  he  says:  There  were  about  forty 
persons  in  the  live  boats  that  reached  the  Caroline.  I  knew  most  of 
tlicin.  I  was  one  of  them.  There  were  nine  in  the  boat  I  went 
in.  I  waL.  on  the  Caroline,  and  assisted  in  towing  her  into  the 
stream. 

To  the  14'th  cross-inieirogatory,  he  saj'^s :  The  boats  used  were 
ship's  jolly-boats,  there  were  about  eight  persons  in  each  boat.  The 
boats  were  all  nearly  of  the  same  size  and  description.  Seven  boats 
started. 

To  the  15th  cross-interrogatory,  he  says:  I  did  not  know  all.  1 
knew  most  of  them.  I  saw  all  the  men  that  embarked,  but  cannot 
say  that  I  recognised  the  features  of  each  one. 

To  ihe  16th  cross-interrogatory,  he  says:  1  knew  all  in  the  boat 
with  me.  1  spoke  to,  and  recognised  each  one  of  them.  Captain 
Drew  commanded  the  expedition.  Lieutenant  Beer  commanded  the 
boat  I  wp.s  in. 

To  the  17th  cross-interrogatory,  he  says :  I  returned  in  the  same 
boat  in  which  I  embarked,  and  believe  that  all  those  who  went  with 
me  returned  with  me. 

To  the  18th  cross-interrogatory,  he  says :  Five  only  of  the  seven 
that  started  reached  the  Caroline.  I  cannot  say  what  became  of 
those  that  failed.  One  of  them  was  commanded  by  Lieutenant  Bat- 
tersby,  of  the  Royal  Navy.  The  other,  either  by  Mr.  Curran  or  by 
Mr.  Hector.  The  boats  that  reached  the  Caroline  arrived  about  the 
same  time.  ^ 

To  the  19th  cross-interrogatory,  he  says  :  I  am  not  aware  that  thcro 
was  any  man  of  the  name  of  McLeod  in  the  expedition. 

To  the  20th  cross-interrogatory,  iie  says :  The  expedition  embark- 
ed at  the  mouth  of  the  Chippewa  creek.  There  was  no  wharf  or 
pier  there.  * 

To  the  21st  cross-interrogatory,  he  says  :  The  boats  were  all  lying 
together.     They  all  started  together. 

To  the  22d  cross-interrogatory,  he  says :  The  five  boats  returned 
about  the  same  time,  and  the  men  disembarked  about  the  Name  time. 
I  did  not  recognise  them  as  they  landed,  as  I  was  despatched  imme- 
diately for  a  surgeon  to  attend  Lieut.  iJcCormick. 


V 

.i  ,.r 


^ 


I  i 


;■;,.■  If'*.'  ! 


::,fi 

,1         ■■ 
i 

s.i: 


it  -  ;i 


176 


GOULD  S   EEPORTEE. 


1 

1 

'1 

1 

1 

H 

ii|(  i ' 

i 

M 

i\ 

i 

1 

1 

1 

' 

f. 


To  the  23(1  cross-interrojratory,  he  says :  Some  of  the  persons 
composintr  ihe  expedition  belonged  to  the  Royal  Navy.  Others  were 
militia  officers,  and  the  rest  were  civilians.  All  the  men  volunteered. 
They  went  up  to  the  boats  in  a  body. 

To  the  2J-th  cross-interrogatory,  he  says :  The  force  was  not  dis- 
played in  any  military  order,  either  on  its  embarkation  or  disem- 
barkation. 

To  the  25th  cross-interrogatory,  he  says:  The  men  were  dressed 
in  their  usual  clothing.     They  had  no  uniform. 

To  the  2Gth  cross-interrogatory,  he  says :  The  party  was  armed 
with  cuilasses  and  pistols.  The  arms  were  procured  from  the  gov- 
ernment stores ;  their  dresses  were  their  own. 

To  the  27th  cross-interrogatory,  he  says  :  After  the  force  returned, 
they  wont  to  their  respective  quarters. 

To  the  28th  cross-interrogatory,  he  says :  The  force  disembarked 
about  two  o'clock  in  the  morning.  It  was  a  dark  night.  There  was 
no  moon.  The  force  went  to  their  respective  quarters.  I  never  saw 
all  the  men  in  a  body  together  afterwards.  I  am  not  aware  that 
they  were  together  that  morning  at  sunrise.  I  have  since  seen  some 
of  the  persons  composing  that  force,  armed  and  equipped  as  they 
were  on  that  night. 

To  the  29th  cross-interrogatory,  he  says:  The  expedition  embark- 
ed about  ten  o'clock. 

To  the  30th  cross-interrogatory,  he  says :  1  was  not  wounded  in 
the  attack  on  the  Caroline.  Lieutenant  McCormick  was  severely 
v/ounded.  There  were  two  others  slightly  wounded.  I  believe  that 
no  one  was  killed. 

To  the  3l3t  cross-interrogatoi'y,  he  says:  Resistance  whs  made  by 
persons  on  board  the  Caroline.    They  had  weapors,  swords  and  pistols. 

To  the  32d  cross-interrogatory,  ho  says  :  There  were  guns  or  pis- 
tols discharged  by  persons  attached  to  the  Caroline.  I  did  not  see 
them  use  any  swords  or  pikes.  The  boat  was  unarmed.  I  sawnn 
cannon  or  munitions  of  war  of  any  kind  on  boar4  of  her. 

To  the  33d  cross-interrogatory,  he  says  :  I  did  not  see  any  one 
on  board  the  Caroline  killed.  I  saw  one  wounded.  I  neither  killed 
nor  wounded  any  person.  I  neither  discharged  a  gun  or  pistol,  nor 
did  I  strike  any  person. 

To  the  34'th  cross-interrogatory,  he  says  •  There  was  no  person  on 
board  the  Caroline  when  she  was  cut  loose  and  sent  over  the  falls. 

To  ihc  33th  cross-intorrogatory,  he  says  :  I  did  not  go  on  shore 
at  Sciilosser.  Some  of  the  attacking  party  were  sent  to  cut  loose  the 
Caroline. 

To  the  36th  cross-interrogatory,  he  says :  I  took  a  bed  for  the  pur- 
pose of  putting  under  Lieutenant  McCormick  after  he  was  wounded. 
1  am  not  aware  that  anything  else  was  taken  except  the  colors  of  the 
boat. 

To  the  37th  cross-interrogatory,  he  says :  I  never  heard  of  the 
steamboat  Caroline  coming  down  from  Buffalo  at  all  until  I  saw  her. 

To  the  38th  cross-interrogatory,  he  says:  I  never  heard  of,  or  saw 
such  a  man. 

To  the  39th  cross-interrogatory,  he  says :  No. 


I 


MCLEOD'S    TRIAL. 


177 


persons 
ers  were 
nteeretl. 

not  dis- 
r  disem- 

dressed 

IS  armed 
the  gov- 

returned, 

Mnbarkcd 
"here  was 
aever  saw 
ivare  that 
;een  some 
d  as  they 

n  embark- 

jmided  in 
1  severely 
elieve  that 

s  made  by 
md  pistols, 
uns  or  pis- 
id  not  see 
I  saw  nil 

any  one 
ler  killed 
)istol,  nor 

person  or 
le  falls, 
on  shore 
loose  the 

'or  the  pnr- 

woundetl 

)lors  of  the 

ard  of  the 
I  saw  her. 
of,  or  saw 


To  the  40th  cross-interrogatory,  he  says  :  No. 

To  the  4l3t  cross-interrogatory,  he  says  :  Not  that  I  know  of. 

To  the  42d  cross-interrogatory,  he  says:  1  know  nothing  whatever 
respecting  the  said  Sylvamis  S.  Rigby. 

To  the  43d  cross-interrogatory,  he  says:  I  never  saw  him. 

To  the  44th  cross-interrogatory,  he  says  :  I  know  nothing  of  the 
matters  inquired  after  in  this  cross-interrogatory. 

To  the  45th  cross-interrogatory,  he  says  :  Alexander  McLeod  nev- 
er spoke  of  the  Caroline  in  my  presence. 

To  the  46th  cross-interrogatory,  he  says :  I  know  nothing  of  the 
matters  inquired  after  in  this  cross-interrogatory. 

To  the  47th  cross-interrogatory,  he  says:  Alexander  McLeod  never 
spoke  of  the  Caroline  in  my  presence,  nor  did  1  to  any  other  person 
in  his  presence. 

To  the  48th  cross-interrogatory,  he  says :  I  never  heard  Alexander 
McLeod  express  an  opinion  on  the  subject. 

To  the  49th  cross-interrogatory,  he  says :  Not  to  my  knowledge. 

To  the  50th  cross-interrogate ry,  he  says:  I  never  did. 

To  the  51st  cross-interrogatory,  he  says  :  Seven  boats  were  at  first 
engaged.  None  started  from  Chippewa  village ;  the  seven  started 
from  the  mouth  of  the  Chippewa  river.  I  am  not  aware  that  any  of 
the  boats  ftt  aground  at  Buckhorn  Island. 

To  the  5'2d  cross-interrogatory,  he  says:  I  am  not  aware  that  any 
person  was  employed  to  pilot  the  boats.  I  do  not  know  any  persons 
of  the  name  of  Weisherlur,  (pronounced  VViscoon.) 

To  the  53d  cross-interrogatory,  he  says :  The  orders  were  given 
by  Sir  Allan  N.  McNab,  and  I  do  not  know  whether  they  were  written 
or  verbal. 

To  the  54th  cross-interrogatory,  he  says :  I  saw  no  armed  force  oii 
the  shore  at  Schlosser.  I  believe  there  were  some  shots  fired  from 
a  house  in  the  neighborhood.  Lieutenant  Elmsley  was  sent  on  shore 
to  cut  loose  the  Caroline.  I  am  not  aware  how  many  men  he  had 
with  him.     I  do  not  know  that  he  met  with  any  opposition. 

To  the  last  cross-interrogatory,  he  says :  I  do  not. 

FREDERICK  CLEVERLY. 

Taken  and  sworn  before  me,  this  twenty-first  day  of  September, 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and  forty- 
one,  at  the  town  of  London,  5n  the  District  of  London,  in  Canada, 

J.  H.  Price,  Commissioner. 


3SITI0N    OF   THOMAS   HECTOR. 

Tlt'^mas  Hector,  of  the  city  or  Toronto,  in  the  Home  District  and 
ProvifK-.e  of  Canada,  Esquire,  aged  thirty-three  years  and  upwards, 
being  produced,  sworn  and  examined  on  behalf  of  the  Defendant-,  in 
the  titi*>  of  these  depositions  named,  doth  depose  as  follows  : 

To  the  1st  jnterrogatory  he  says  :  I  know  Alexander  McLeod, 
late  Deputy  Sheri'*' of  file  District  of  Niagara,  and  have  known  him 
since  sometime  n  the  y«ir  1836  down  to  the  29th  day  of  December 
1837.  I  have  frequently  seen  him,  but  have  had  no  personal  inter- 
course with  him.     '  am  not  aware  of  what  nation  he  is  a  citizen  or 

33 


I 


:i 


i     y-r 


I,  i' ' 


::S--. 


# 


178 


Gould's  reporter. 


ilr 


subject,  but  believe  him   to  he  a  British  subject,  and  know  tliat  he 
was  then  a  resident  in  the  Niagara  District  in  Canada. 

To  the  2nd  interrogatory  he  says:  I  recollect  the  time  of  the  de- 
struction of  the  Caroline  ;  it  was  on  or  about  the  29th  day  of  Decem- 
ber, 1S37.  I  wan  residing  at  Lundy's  Lane  and  was  in  Chippewa 
daily  for  about  a  fortnight  pr'^vious  to  the  destruction  of  the  Cars- 
line. 

To  the  3d  interrogatory  he  says:  Those  that  went  to  destroy  the 
Caroline  embarked  from  the  southern  bank  of  the  Chippewa  Kiver, 
in  the  Niagara  District.  They  left  the  beach  in  about  half  an  hour 
after  I  arrived  there,  but  I  cannot  say  how  long  they  had  been  there 
before  my  arrival,  it  was  about  10  o'clock  in  the  evening  when  I  ar- 
rived. I  was  on  the  bank  among  those  who  were  going  on  the  ex- 
pedition, surrounded  by  a  great  concourse  of  people.  1  mixed  with 
those  going  on  the  expedition,  and  recognized  and  spoke  to  several, 
but  from  the  darkness  did  not  recognize  all ;  the  night  was  clear  but 
we  were  shaded  by  some  willow  trees.  I  could  see  all  those  within 
two  or  three  yards  ;  there  was  no  moon. 

To  the  fourth  interrogatory  he  says :  I  cannot  say  where  Alexan 
der  McLeod  was.     I  did  not  see  him  that  night. 

To  the  5th  interrogatory  he  says  :  I  do  not  know  where  he  was 
while  those  going  on  the  expedition  were  standing  on  the  banks  and 
down  to  the  time -when  they  embarked.  I  did  not  see  him  on  the 
bank  or  in  any  boat. 

To  the  6th  interrogatory  he  says :  I  embarked  on  board  one  of  the 
boatti  and  vowed  to  the  mouth  of  the  Chippewa  River  ;  we  there 
landed  and  towed  the  boats  up  the  Niagara  River  to  a  point  oppo- 
site Navy  Island,  where  I  again  embarked  in  one  of  the  boats  enga- 
ged in  the  expedition,  and  a  second  time  returned  to  change  the 
rowers,  owing  to  their  inability  to  stem  the  current  of  the  river.  I 
then  finally  embarked  to  join  the  other  boats  in  taking  the  Caroline. 
I  went  to  a  part  of  the  river  within  about  two  hundred  yards  of 
Fort  Schlosser,  when  the  Caroline  burst  suddenly  into  a  blaze.  We 
did  not  land,  but  approached  su*'^  I'ently  near  to  see  persons  on  th^ 
wharf,  and  then  returned  to  the  v^anada  shore.  I  was  in  c  mmand 
of  tiie  boat. 

To  the  7th  interrogatory  he  says :  I  did  see  all  the  persons  in  the 
boat  I  went  in.  Mr.  McLeod  was  not  in  the  boat ;  I  did  not  see  him 
at  all  that  night. 

To  the  8th  interrogatory  he  says :  I  saw  the  Caroline  when  on 
fire  but  did  not  go  on  board  of  her.  I  was  not  nearer  to  her  than 
between  one  hundred  and  two  hundred  yards.  I  have  before  stated 
I  did  not  see  Alexander  McLeod  that  night,  and  I  have  no  knowledge 
of  his  being  there. 

To  the  9th  interrogatory  he  says:  I  know  nothing  as  to  the  mat- 
ters contained  in  this  interrogatory. 

To  the  10th  interrogatory  he  says :  I  can  state  positively  Alexan- 
der McLeod  was  not  among  those  whom  I  saw,  who  consisted  of  the 
greater  number  of  those  engaged  in  the  expedition  assembled  at  the 
tavern,  where  we  were  stationed  immediately  after  our  return,  where 
we  supped  together.     We  conversed  for  the  greater  part   of  the 


night  re 

names  < 

.  \fcLeod 

listfi  ?naa 

versatioi 

>cvcn  o'( 

To  th« 

^'oven  or 

not  say  1 

turned,   i 

which  1  \ 

To  the 

>IcNab,  } 

started  ; 

inan(!ed  h 

N.  McNa 

To  the 

niand  of  i 

"V.  McNal 

To  the 

lating  to  t 


Answers 
The  sai( 
saith :  I  ai 
the  tenth 
ed   in  Can 
iind  am  a 
To  the 
Captain  El 
attached  t( 
To  the  'c 
during  the 
To  the 
hear  him  s 
To  the  5 
To  the  6 
To  the 
matters  coi 
To  the  8 
To  the 
At  2  o'cloc 
ill  readines 
for  what 
the    Carolir 
Alexander 
ted  to  me. 
To  the  1( 


( 


i 


Mcleod's  trial. 


179 


V  that  he 

>f  the  dc- 
f  Decem- 
Jhippewa 
he  Car»- 

stroy  the 
va  Kiver, 
f  an  hour 
een  there 
rhen  I  !iv- 
)n  the  ex- 
lixed  with 
o  several, 
!  clear  but 
3se  within 

re  Alexan 

re  he  was 
banks  and 
im  on  the 

one  of  the 

we    there 

)oint  oppo- 

)oats  enga- 

;hange  the 

e  river,     I 

Caroline. 

yards  of 

aze.     We 

ons  on  the 

c^  nimand 

sons  in  the 
lot  see  him 

le  when  on 
to  her  than 
;fore  stated 
knowledge 

to  the  mat- 

ely  Alexan- 
isted  of  the 
bled  at  the 
turn,  where 
)art   of  the 


night  respecting  the  parties  engaged  in  the  expedition.  I  heard  the 
names  of  all  that  had  been  so  engaged,  but  the  name  of  ^Ilexandcr 
.McLeod  was  not  one  of  those  mentioned^  nor  was  it  entered  in  any  of  the 
h'st<i  made  out^  of  the  names  of  (hose  so  engaged.  We  were  still  in  con- 
versation when  the  lists  were  made  out ;  this  was  between  six  and 
<cvcn  o'clock  in  the  morning. 

To  the  11th  interrogatory  he  says:  ^ine  left  the  Chippewa  River 
Seven  only  left  the  bank  opposite  JN'avy  Island  under  orders.  I  can- 
not say  how  many  reached  her,  and  I  only  know  of  four  havino-  re- 
turned, who  crossed  about  the  same  time  in  sight  of  the  boat  in 
which  I  was. 

To  the  12th  interrogatory  he  says:  I  c'o  know  Sir  Allan  Napier 
McNab,  he  was  on  the  bank  of  the  Chippewa  Kiver  when  the  boats 
started  ;  the  expedition  was  undertaken  by  his  orders  ;  it  was  coni- 
mancfed  by  Captain  Drew  ;  T  .beard  no  directions  given  by  Sir  Allan 
N.  McNab. 

To  the  13th  interrogatory  he  says;  Captain  Drew  was  in  com- 
mand of  the  expedition,  and  I  believe  under  the  orders  of  Sir  Allan 
N.  McNab. 

To  the  last  interrogatory  he  says  :  I  know  of  nothing  further  re- 
lating to  the  matters  in  question. 

Adam  Wilson,        ^ 

J.  H.  Price,  >    Commissioners. 

James  E.  Small,     3 

Answers  to  the  interrogations  by  way  of  cross  examination. 

The  said  Thomas  Hector,  in  answer  to  the  1st  cross  interrogatory 
saith :  I  am  at  present  residing  in  Kingston,  have  been  here  since 
the  tenth  day  of  June  last.  I  am  a  native  of  England,  and  have  resid- 
ed in  Canada  since  the  year  18.33.  I  am  thirty-three  years  of  age, 
imd  am  a  Clerk  in  the  Surveyor  General's  Department. 

To  the  2d  cross-interrogatory  he  says  I  was  a  volunteer  under 
Captain  Elmsley,  and  held  no  particular  rank.  I  was  not  at  that  time 
attached  to  any  vessel. 

To  the  3d  cross  interrogatory  he  says :  I  did  not  see  him  at  all 
during  the  week  preceding  the  burning  of  the  Caroline. 

To  the  4th  cross  interrogatory  he  says :  I  did  not  at  any  time 
hear  him  speak,  or  speak  to  him  on  the  subject  of  the  Caroline. 

To  the  5th  cross  interrogatory  he  says  :     He  did  not. 

To  the  6th  cross  interrogatory  he  says:  I  never  wei>t  with  him. 

To  the  7th  cross  interrogatory  he  says :  I  know  nothing  of  the 
matters  contained  in  this  interrogatory. 

To  the  8th  cross-interrogatory,  he  says    I  did  not. 

To  the  9th  cross-interrogatory,  he  says :  It  did  not  occur  to  me. 
At  2  o'clock  in  the  day  I  was  told  by  Captain  Drew  to  hold  myself 
in  readiness  at  10  o'clock  that  night,  but  he  did  not  inform  me 
for  what  purpose.  It  was  not  aware  until  I  went  in  the  boat  that 
the  Caroline  was  to  be  destroyed.  I  did  not  communicate  it  to 
Alexander  McLeod.  He  was  not  present  when  it  was  communica- 
ted to  me.     I  do  not  know  whether  he  knew  of  it  or  not. 

To  the  10th  cross-interrogatory,  he  says :  I  think  I  saw  her  one  or 


i    :|' 


mn 


I  ' 


'C;; '■;■•*' 


l^i-! 


ISO 


GOULD  S    REPORTEB. 


^    1 


t 


n,:' 


i:^' 

r^': 


two  days  before  she  was  destroyed  making'  trips  from  Schlosser  to 
Navy  Island.  Alexander  McLeod  never  informed  me  of  her  beinof 
at  Schlosser.  The  preparations  were  made  on  the  day  on  which  she 
was  destroyed.  I  went  to  Kirkpatrick's  tavern,  as  stated  in  my  an- 
swer to  the  10th  interrogatory  in  chief. 

To  the  11th  cross-interrogatory,  he  says:  I  was  not  at  Davis'  tav- 
ern. I  did  not  see  McLeod  at  or  near  Davis'  tavern  at  any  time  aftei' 
the  destruction  of  the  Caroline. 

To  the  12th cross-interrogatory,  he  says:  I  cannot  say  how  many 
persons  were  present  when  the  expedition  started  oviing  to  the  dark- 
ness of  the  nighty  nor  cf.n  I  form  an  opinion  on  the  subject.  There 
was  a  large  assemblage  of  people.  I  can  state  no  more  in  answer  to 
the  other  parts  of  this  cross-interrogatory  thim  I  have  before  stated 
in  my  examination  in  chief. 

To  the  13th  cross-interrogatory,  he  says:  I  cannot  state  positively 
how  many  persons  were  embarked,  but  I  think  between  forty  and 
fifty.  I  did  not  know  the  whole  of  them.  I  knew  the  greater  part 
of  them  by  sight.  I  was  one  of  them.  There  were  only  four.  1 
\vas  not  on  board  of  the  Caroline.  I  took  no  other  part  except  en- 
deavoring to  reach  her,  but  failed  as  I  have  before  stated. 

To  the  14th  cross-interrogatory,  he  says :  They  were  all  rowboats. 
I  cannot  say  how  many  men  in  each  boat.  Some  of  the  boats  were 
eight  oar  boats,  and  some  of  them  four  oar  boats.  There  were  seven 
boats. 

To  the  15th  cross-interrogatory,  he  says  :  I  did  not  know  all  nor 
did  I  see  the  faces  of  all. 

To  the  16th  cross-interrogatory,  he  says :  I  did.  I  did  speak  td 
and  recognize  each  one  of  them.  I  have  before  stated  that  Captaiii 
Drew  commanded  the  expedition,  and  I  commanded  the  boat  I  was 
in. 

To  the  17th  cross-interrogatory,  he  says :  Yes. 

To  the  IBth  cross-interrogatory,  he  ^-js:  All  did  not  reach  the- 
Caroline.  I  cannot  say  how  many  failed  or  who  commanded  them 
except  the  one  1  was  in.  1  do  not  know  what  became  of  all  those 
that  failed,  but  believe  they  regained  the  Canada  shore.  I  cannoi 
say  whether  the  boats  that  reached  the  Caroline  arrived  at  the  same 
time,  or  which  arrived  first. 

To  the  19th  cross-interrogatory,  he  pays:  I  cannot  say  whether 
there  was  a  man  in  the  expedition  by  the  name  of  McLeod  or  not. 

To  the  20th  cross-interrogatory,  he  says :  I  have  before  stated 
when  the  expedition  embarked. 

To  the  21st  cross-interrogatory,  he  says  :  The  boats  were  all  lyin<r 
at  the  same  place  and  started  together. 

To  the  22d  cross-interrogatory,  ho  says  :  The  boats  did  not  all  re- 
turn at  the  same  time,  nor  did  the  expedition  disembark  at  the  same 
time  or  place.  I  did  not  see  and  recognise  all  the  persons  1  saw  em- 
bark. 

To  the  23d  cross-interrogatory  he  says :  They  were  militia  and  vol- 
unteers who  were  ordered  to  hold  themselves  in  readiness  for  some 
service  which  was  not  disclosed  until  the  boats  started,  as  I  have  before 
mentioned,  and  composed  part  of  the  force  under  the  orders  of  Sir 


m^'. 


know  all  nor 


Mcleod's  trial. 


181 


Allan  N.  MacNab.  I  do  not  know  how  they  entered  the  boats  as 
tivc  or  six  of  them  were  manned  when  I  arrived.  They  were  lying 
on  their  oars  in  the  Chippewa  river. 

To  the  S+th  cross-interrogatory,  he  says:  I  cannot  say  whether 
the  force  was  displayed  in  military  form  before  embarkation,  but  I 
can  state  positively  it  was  not  at  disembarkation. 

To  the  25th  cross-interrogatory,  he  says :  There  was  no  particu- 
lar uniform.     Each  man  wore  his  own  ordinary  dress. 

To  the  26th  cross-interrogatory,  he  says  :  With  guns,  pistols,  pikes 
and  cutlasses.  I  do  not  know  when  or  from  whom  the  weapons 
were  procured,  they  were  ready  furnished  when  I  arrived. 

To  the  27th  cross-interrogatory,  he  says :  The  greater  number  re- 
assembled as  I  before  stated  at  Kirkpatrick's,  and  remained  there  as 
it  was  our  appointed  station,  and  we  were  inspected  there  the  next 
morning  by  Captain  Drew. 

To  the  28th  cross-interrogatory,  he  says:  The  force  disembarked 
at  midnight.  There  was  no  moon.  I  cannot  say  whether  it  was 
cloudy  or  not.  The  night  was  fine  and  very  warm  for  the  season.  1 
have  already  stated  where  the  force  went  upon  its  return,  and  how 
they  disposed  of  themselves  afterwards.  We  remained  together  for 
several  days  until  we  were  drafted  into  different  schooners  and  corps. 
From  the  mixed  nature  of  the  corps,  the  arms  used  in  the  expedition 
against  the  Caroline  were  provided  for  the  particular  occasion. 
When  the  expedition  was  over  the  arms  were  again  collected,  and 
each  person  resumed  those  he  had  previously  carried,  consequently 
I  never  again  saw  the  force  armed  and  equipped  as  it  was  on  that 
night. 

To  the  29th  cross-interrogatory,  he  says :  About  10  o'clock,  as  I 
have  before  stated. 

To  the  30th  cross-interrogatory,  he  says  :  I  was  not  wounded,  nor 
do  I  know  that  any  others  were,  but  I  saw  four  or  five  at  least  who 
had  been  engaged  in  the  attack  on  the  Caroline  with  wounds  upon 
them,  some  of  a  dangerous  character.  No  person  was  killed  that  1 
know  of. 

To  the  31st  cross-interrogatory,  he  says  :  I  do  not  know. 

To  the  32d  cross-interrogatory,  he  says  :  I  heard  fire-arms  discharg- 
ed and  saw  flashes  on  the  wharf,  but  do  not  know  by  whom  they 
were  discharged.  I  know  nothing  of  the  mattei^s  contained  in  this 
interrogatory  other  than  what  1  have  already  stated. 

To  the  33d  cross-intevrogatory,  he  says:  I  was  not  on  board  the 
Caroline.  I  did  not  discharge  any  tire-arms  nor  strike  or  wound 
any  one,  "nd  have  no  knowledge  of  the  other  matters  enquired  of  in 
this  interrogatory. 

To  the  34th  cross-interrogatory,  he  says :  I  have  no  knowledge 
that  there  w<?re  any,  nor  do  I  believe  there  were  any  on  board  the 
Crroline  when  she  was  burnt,  although  I  think  I  was  near  enough 
to  have  observed  had  there  been  any  person  on  deck. 

To  the  35th  cross  interrogatory,  he  says:  I  did  not,  nor  did  any 
of  my  boat's  crew  land.     1  cannot  speak  as  to  any  of  the  others. 

To  the  36th  cross-interrogatory  he  says  :  I  did  not,  nor  did  any  of 
those  in  my  boat.     I  cannot  speak  in  regard  to  what  others  may  have 


II, 


,Ml, 


Pi 


<M  ,'»'., 


A 


■$ 


182 


GOULD  S    REPORTER. 


yi 


\W 


f 


done.     I  saw  one  or  two  swords  which  I  was  informed  had  been  ta- 
ken from  on  board  the  Caroline. 

To  the  37th  cross-interrogatory,  he  says :  I  know  and  heard  noth- 
ing of  the  steamboat  Caroline  coming  to  Schlosser  or  Navy  Islami 
until  I  saw  her.  Mr.  McLeod,  as  I  have  before  stated,  never  spoke  to 
me  on  the  subject. 

To  the  38th  cross-interrogatory  he  says :  I  never  knew  or  heard 
of  such  a  person. 

To  the  39th  cross-interrogatory  he  says  :  No. 

To  the  ^Oth  cross-interrogatory  he  says  :  No/ 

To  the  41st  cross-interrogatory  he  says  :  I  do  not  know. 

To  the  42d  cross-interrogatory  he  says :  I  know  nothing  of  the 
matters  contained  in  this  interrogatory. 

To  the  43d  cross-interrogatory  he  says :  I  never  saw  him. 

To  the  44th  cross-interrogatory  he  says :  I  know  nothing  of  the 
matters  contained  in  this  interrogatory. 

To  the  45th  cross-interrogatory  he  says  :  He  never  did. 

To  the  4()th  cross-interrogatory  he  says :  I  do  not  know  and 
have  had  no  conversation  with  him  on  this  subject. 

To  the  47th  cross-interrogatory  he  says:  I  never  heard  Alexander 
McLeod  converse  with  any  person  nor  did  he  converse  with  me,  nor 
have  I  conversed  with  him  or  with  any  other  person  in  his  presence 
on  *he  subject  of  the  Caroline  before  she  was  destroyed. 

To  the  48th  cross-interrogatory  he  says :  I  never  did 

To  the  49th  cross-interrogatory  he  says :  He  never  did  to  my 
knowledge. 

To  the  50th  cross-interrogatory  he  says :  I  never  did. 

To  the  51st  cross-interrogatory  he  says:  Nine  boats  were  first 
manned  in  the  Chippewa  River.  Nine  left  the  river,  seven  only  arrived 
at  the  place  of  final  embarkation.  I  cannot  say  whether  any  boats 
were  grounded  on  Buckhorn  Island. 

To  the  53d  cross-interrogatory  he  says :  No  person  was  employ- 
ed as  pilot  that  I  am  aware  of.  Captain  Drew  led  and  we  were  or- 
dered to  follow.  I  never  heard  of  such  person  or  persons  as  are 
named  in  this  interrogatory. 

To  the  53d  cross-interrogatory,  he  says :  I  am  not  aware  of  the 
manner  in  which  the  orders  are  given,  or  whether  they  were  given 
verbally  or  in  writing,  publicly  or  privately.  I  infer  that  Sir  Allan 
Napier  McNab  gave  the  orders  as  he  was  present  at  the  embai'ka- 
tion  of  the  men  and  sanctioned  the  proceeding,  he  being  at  that  time 
commanding  on  the  frontier.  This  is  all  T  '  -low  respecting  the  mat- 
ters contained  in  this  interrogatory. 

To  the  54th  cro&s-interrogatory  he  says  :  I  do  not  know  whether 
there  was  any  armed  force  stationed  on  land  at  or  near  the  wharf 
where  the  Caroline  was  lying.  I  was  not  attacked  or  fired  upon  at 
all.  I  do  not  know  whether  any  persons  were  sent  on  shore,  or 
whether  they  met  with  opposition  or  not. 

To  the  last  cross-interrogatory,  he  says:  I  know  of  nothing  fur- 
ther relating  to  any  of  the  matters  in  question. 

Signed  THOS.  HECTOR. 

Taken  and  sworn  before  us  this    11th  day  of  September,  in  the 


finally 


■■■l 


ia. 


MCLEOD  S   TRIAL. 


183 


year  of  our  Lord  one  thousand  eight  hundred  and  forty-one,  at 
the  town  of  Kingston,  in  Canada. 

Adam  Wilson,  J 

J.  H.  I'lucK,       >  Commissioners. 

Jas.  E.  Small,  ) 


$ 


if. 


DEPOSITION  OF  NEIL  MCtiUr.GOR. 

J\'eil  McGregor,  of  Chippewa,  nged  twenty-four,  hc'incr  produced, 
sworn  and  examined  on  behalf  of  the  defendant,  in  the  title  of  these 
depositions  named,  doth  depose  as  follows  : 

To  the  1st  intcrrooatury,  he  says:  I  reside  in  Chippewa.  I  d(i 
know  a  person  of  the  name  of  McGregor,  who  was  a  clerk  to  a  Mr. 
Macklem,  of  Chippewa,  at  the  period  nieutioned  in  this  interrogato- 
ry. I  am  the  person  I  have  just  alluded  to.  Mr.  Macklem's  chris- 
tian name  is  Oliver  T.  1  was  clerk  with  him  at  that  time,  and  have 
continued  constantly  in  his  employ  for  nearly  the  last  two  years. 

To  the  '2d  interrogatory,  he  says :  No  other  person  of  the  name 
of  McGregor  than  myself,  was  clerk  for  a  Mr.  Macklem  residing  iu 
Chippewa  during  the  last  fall. 

To  the  3d  interrogatory,  he  says  •  I  am  the  person  mentioned  in 
iny  answer  to  the  first  interrogatory. 

To  the  4lh  interrogatory,  he  says  :  I  am  not  acquainted  personally 
with  McLeod,  but  have  known  him  by  sight  for  the  last  live  or  six  years. 

To  the  5th  interrogatory,  he  says :  1  had  no  such  conversation  as 
is  set  forth,  mentioned  in  the  fifth  interrogatory  with  McLeod. 

To  the  6th  interrogatory,  he  says :  I  did  not  know  McLeod  only 
as  before  stated,  and  had  so  known  him  for  about  two  years  before 
the  destruction  of  the  Caroline.  I  do  remember  of  having  seen 
McLeod  in  Chippewa  during  the  xlisturbance,  in  the  winter  of  1837 
and  1838.     I  do  not  remember  the  month. 

To  the  7th  interrogatory,  he  says  •  I  was  clerk  to  James  Macklem. 

To  the  8th  inte*rogotary,  he  says:  Yes.  I  was  one  of  the  expedi- 
tion. On  the  day  in  question  I  was  one  of  a  number  of  men  assem- 
bled in  a  private  house  near  the  mouth  of  the  Chippewa  creek,  for 
the  purpose  of  some  secret  expedition.  What  the  object  of  the  ex- 
pedition was,  I  did  not  then  know.  There  was  an  officer  in  the  room 
with  us.  I  was  in  the  room  about  two  hours,  when  Colonel  McNab 
came  in  with  some  others.  I  do  not  remember  all  he  stated,  but  I 
do  recollect  his  saying  if  you  miss  your  aim,  the  Falls  would  make 
a  very  fine  winding-sheet.  Arms  were  then  given  to  us,  consisting 
of  cutlasses,  pistols,  boarding  pikes.  We  then  proceeded  over  Chip- 
pewa bridge  towards  the  Chippewa  creek.  I  do  not  remenrber  wheth- 
er Colonel  McNab  .accompanied  us.  We  there  found  boats  in 
readiness  for  us,  and  after  remaining  a  short  time,  embarked  and 
proceeded  up  the  Niagara  river  about  three  quarters  of  a  mile,  quite 
close  to  the  shore,  to  a  point  nearly  opposite  the  foot  of  Navy  Island. 
Some  of  the  boats  were  tracked  up  the  river.  The  boat  I  was  in 
was  not,  it  was  rowed.  We  then  drew  up  for  a  few  minutes.  The 
men  of  the  crews  who  tracked  up  the  boats  then  embarked,  and  we 
finally  pushed  ofi'upon  the  expedition.  The  expedition  was  propos- 
ed to  me  privately.     I  do  not  know  by  whom. 


i  ., 


..Wji . 


ffi- 


f    H'k 


'  w 


184 


uOULD  S   REPORTER. 


m 


pi. 


ii 


' 


To  the  9th  interrogatory,  he  says  :  So  of  the  men  in  the  room 
refuaed  to  go.  They  declined  because  they  were  not  intbrnu'd 
where  they  were  to  go,  and  for  wliat  purpose.  I  have  answered  an 
to  the  other  matters  inquired  after  by  this  interrogatory,  in  my  an- 
swer to  the  last  preceding  interrogatory. 

To  :hj  10th  interrogatory,  he  says:  By  otiiers,  volunteers. 

To  the  1 1th  interrogatory,  he  says:  Not  that  i  know  of. 

To  the  12th  interrogatory,  he  says :  They  assembled  again  on  the 
beach  as  before  stated.  I  was  among  them.  1  had  no  opportunity 
of  distinguishing  the  individuals  at  the  meeting  on  the  beach,  as  the 
night  was  dark. 

To  the  13th  interrogatory,  he  says:  I  cannot  say  whether  he  was 
there  or  not. 

To  the  l-Ath  interrogatory,  he  says :  The  cutting  out  of  the  Caro- 
line. The  object  of  the  expedition  was  first  communicated  to  us  as 
a  body  opposite  Navy  Island.  Captain  Drew  commanded  the  ex- 
pedition. 

To  the  15th  interrogatory,  he  says  :  I  accompanied  the  expedition, 
J.  P.  Battersby  commanded  the  boat  I  went  in.  I  forget  who  com- 
manded the  other  boats.  I  believe  seven  started  and  five  reached 
the  Caroline.  I  believe  he  was  not  in  the  boat  I  was  in,  or  in  any 
other.     I  did  not  see  him. 

To  the  16th  interrogatory,  he  says :  I  was  not  on  the  Caroline 
that  night. 

To  the  17th  interrogatory,  he  says :  I  did  not  learn  their  names  at 
that  time. 

To  the  last  interrogatory,  he  says  :  No. 

NiEL  McGregor. 

By  consent  of  the  counsel  for  the  ;*espective  parties  to  this  case, 
the  examination  of  the  witness,  Niel  McGregor,  on  the  cross  interro- 
gation, was  waived. 

Sworn,  taken  and  subscribed,  at  the  village  of  Chippewa,  in  Cana- 
da, this  twentieth  day  of  September,  in  the  year  of  our  Lord 
IS^l,  before  us, 

Seoker  Brough,    ) ^ 

A         iir  }  Commissioners. 

Adam  Wilson,       ) 


I 


u 


deposition    of    JOHN    PALMER    BATTERSBY. 

John  Palmer  Battersly,  of  the  village  of  Ancaster,  in  the  Gore  Dis- 
trict Canada,  Esquire,  aged  forty-four  years,  being  produced,  sworn, 
and  examined  on  the  behalf  of  the  defendant  in  the  title  of  these  de- 
positions named,  doth  depose  as  follows  : 

To  the  1st  interrogatory  he  says  :  I  do  not  J^now  him,  and  never 
met  him  to  my  knowledge. 

To  the  2d  interrogatory  he  says :  I  do  recollect  the  destruction  of 
the  Caroline.  I  was  at  Chippewa  at  that  time.  I  think  I  was  there 
four  or  five  days  before  the  destruction  of  the  Caroline. 

To  the  3d  interrogatory  he  says  :  From  the  bank  of  the  Chippe- 
wa River,  a  little  inside  of  the  mouth.  Some  perhaps  were  on  the 
beach  about  twenty  minutes  before  they  embarked,  others  immedi- 
ately embarked  upon  their  coming  there.    I  was  there  twenty  min- 


4 


MCLEOD'S   TRIAL. 


the  room 

int'ornicd 

Hwcrod  ftK 

in  my  an- 

ixa. 

ain  on  the 
pportunity 
ach,  as  the 

ler  he  was 

the  Caro- 
;d  to  us  as 
;d  the  ex- 
expedition. 

who  com- 
ve  reached 
,  or  in  any 

le  Caroline 

ir  names  at 


GOR. 

this  case, 
OSS  interro- 

ra,  in  Cana- 
our  Lord 


jners. 


Gore  Dis- 
ed,  sworn, 
)f  these  de- 

and  never 

struction  of 
was  there 

the  Chippe- 
rere  on  the 
;rs  immedi- 
wenty  min- 


185 


utes  or  half  an  hoiii,  and  was  employed  in  petting  my  hoat  ready. 
I  had  no  opportunity  of  secinjr  or  noticiiijr  thoso  who  went  on  the 
expedition  except  those  who  went  in  the  boat  with  me. 

To  the  ^th  interrogatory  he  say« :  I  do  not  know  where  Alexander 
AIcLeod  was,  but  he  was  not  in  the  bt)at  with  me. 

To  the  .'ith  interrogatory  he  says:  I  do  not  know  where  he  was  at 
the  period  mentioned  in  this  interrogatory,  and  cannot  say  where  he 
was  not. 

To  the  Hth  interrogatory  he  says  :  I  went  with  the  expedition  in 
a  boat.     I  commanded  the  boat  in  which  I  was. 

To  the  7th  interrogatory  he  says  ;  f  did  nut  go  toSchiosser,  but  I 
saw  all  the  persons  in  the  boat  I  went  in.  Alexander  AIcLeod  was 
not  on  board  of  the  boat  with  me.  I  did  not  see  him  at  all.  The 
boat  I  was  in  did  not  reach  the  Caroline,  or  go  to  Schlosser. 

To  the  Sth  interrogatory  he  says  :  1  did  not  see  the  Caroline  on 
the  night  of  her  destruction  ;  1  was  not  on  board  of  her.  The  boat 
in  which  I  was,  did  not  reach  the  Caroline  in  conse(|uence  of  my 
men  being  bad  rowers,  we  lost  sight  of  the  other  boats,  and  were 
then  ignorant  of  the  point  of  attack.  I  can  say  nothing  as  to  the 
rest  of  the  matters  inquired  after  by  this  interrogatory. 

To  the  9th  interrogatory  he  says:  I  know  nothing  of  the  transac- 
tion inquired  after  by  this  mtrerogatory. 

To  the  10th  interrogatory  he  says  :  I  did  not  see  any  of  them.  I 
did  not  see  Alexander  McLeod  at  the  time  mentioned  in  this  inter- 
rogatory to  my  knowledge. 

To  the  11th  interrogatory  he  says:  Seven  boats  started  ;  I  do  not 
know  how  many  reached  her,  nor  how  many  returned  in  company. 

To  the  12th'  interrogatory  he  says  :  I  know  Sir  Allan  N.  iVIcNab  ; 
I  do  not  know  where  he  was  at  the  time  the  expedition  started.  I 
do  not  know  by  whose  command  the  expedition  was  undertaken.  1 
never  heard  Sir  Allan  McNab  give  any  directions  in  reference  to  it. 

To  the  13th  interrogatory  he  says :  Captain  Drew  was  in  com- 
mand of  the  expedition.  I  do  not  know  by  whose  orders  he  took  the 
command. 

To  the  last  interrogatory  he  says :  I  know  nothing  further  touch- 
ing the  matters  in  question. 

J.  P.  BATTERSBY. 

Sworn  at  the  (own  of  Hamilton,  Canada,  this  17th  day  of  Septem- 
ber, 184-1,  before  me,  Secker  Brough,  Commissioner. 

Answers  to  the  interrogatories  by  way  of  cross-examination,  pro- 
posed to  John  Palmer  Battersby,  a  witness  produced,  sworn,  and  ex- 
amined on  the  part  and  behalf  of  Alexander  McLeod,  in  a  suit  now 
pending  in  the  Supreme  Court  of  Judicature  of  the  people  of  the 
State  of  New  York,  before  the  Justices  thereof,  at  the  suit  of  the 
said  people,  upon  an  indictment  for  murder,  before  Secker  Brough 
Esquire,  a  Commissioner,  under  and  by  virtue  of  a  commission  issued 
out  of  the  said  Supreme  Court,  and  under  the  seal  thereof,  pursuant 
to  an  order  of  the  said  Court,  entered  on  the  13th  day  of  July,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  forty-one. 

To  the  1st  cross-interrogatory  he  says :  I  reside  at  the  village  of 

24 


'  iV 


'»i. 


J 


!•  M 


K 


y 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


I.I 


l^|28     |2.5 
|5o  ■^~     M^H 


IK 


■^  Igg 


1.8 


L25      1.4 

|l.6 

^ 

6"     — 

► 

V] 


<^ 


/a 


/. 


W 


';' 


Hiotographic 

Sciences 

Corporation 


23  WEST  MAIN  STREET 

WEBSTER,  N.Y.  14580 

(716)  872-4503 


186 


GOULD  S   REPORTER. 


rU 


Ancaster  in  the  Gore  District  and  Province  of  Canada,  and  have  resi- 
ded there  about  four  years.  1  am  a  native  of  Ireland.  I  have  resi- 
ded in  Canada  between  four  and  five  years.     I  am  forty-four  years  of 


age, 


and  am  a  farmer. 


The  tlie  2d  cross-interrogatory  he  says :  I  was  employed  at  Chip- 
pewa as  a  Lieutenant  in  the  Navy,  in  December  1837.  I  was  not  at- 
taclied  to  any  vessel,  but  I  had  charge  of  a  number  of  boats.  I  was 
not  attached  to  the  land  forces. 

To  the  3d  cross-interrogatory  he  says:  I  never  saw  Alexander 
McLeod  to  my  knowledge. 

To  the  4th  cross-interrogatory  he  says  :  I  never  had  an  interview 
with  McLeod,  or  heard  him  converse  or  speak  on  any  subect  to  my 
knowledge. 

To  the  5th  cross-interrogatory  he  says :  The  answer  to  this  inter- 
rogatory i^  contained  in  the  answer  to  the  last  preceding  interroga- 
tory. 

To  the  6th  cross-interrogatory  he  says  :     No. 

To  the  7th  cross-interrogatory  he  says .  I  know  nothing  of  the 
matter  inquired  after  by  this  interrogatory,  nor  have  I  ever  under- 
stood anything  from  him  on  this  subject. 

To  the  8th  cross-interrogatory  he  says :  No. 

To  the  9lh  cross-  interrogatory  he  says :  It  never  occurred  to  me, 
and  I  was  not  aware  at  any  time  what  vessel  we  were  going  to  at- 
tack ;  but  as  we  were  about  to  push  off  from  the  shore  Captain  Drew 
called  me  out  of  the  boat  and  told  me  we  were  going  to  attack  a 
steamboat.  I  did  not  communicate  with  McLeod  on  the  subject 
in  any  way.  McLeod  was  not  present  to  my  knowledge  when  it 
was  communicated  to  me.  I  do  not  know  whether  McLeod  knew 
of  it  or  not. 

To  the  10th  cross-interrogatory  he  says :  I  first  discovered  that 
the  Caroline  was  at  Schlosser  when  I  observed  the  fire,  or  at  least 
that  the  vessel  attacked  was  at  Schlosser,  for  at  that  time  I  did  not 
know  the  name.  McLeod  never  at  any  time  informed  me  where  the 
Caroline  was.  I  think  I  commenced  preparations  for  an  expedition 
about  three  hours  before  we  started ;  though  I  was  not  aware  what 
the  particular  object  of  the  expedition  was  to  be  ;  went  immediately 
upon  my  return  to  my  quarters. 

To  the  11th  cross-interrogatory  he  says:  I  do  not  recollect 
whether  I  was  at  Davis's  tavern,  the  day  after  the  night  of  the  burning 
of  the  Caroline.  I  did  not  see  JlcLeod  there  to  my  knowledge,  nor 
did  I  ever  converse  with  him  about  the  burning  of  the  Caroline,  on 
the  Monday  or  at  any  other  time. 

To  the  12th  cross-interrogatory  he  says :  I  was  present  at  the  burn- 
ing of  the  Caroline  in  December,  1837.  I  was  concerned  in  that  ex- 
pedition and  did  see  the  embarkation.  I  suppose  about  two  hun- 
dred people  were  upon  the  shore  at  or  near  the  place  where  the 
boat  started. 

To  the  13th  cross-interrogatory  he  says  :  I  do  not  know,  but  to  the 
best  of  my  judgment,  fifty  or  fifty-five  persons  embarked  in  the  expe- 
dition. I  did  not  know  all  the  persons  who  went  on  the  enterprize, 
I  was  one  of  the  number.    Seven  persons  were  in  the  boat  which  I 


m  my  o 
Toth 
few  bel 
ing  the 
drafted 
boats, 
beliel'e. 

To  til 
played 
know  w 
To  th 
usual  an 
form, 
of  their 


'r  M. 


.*i 


MCLEOD  S   TRIAL. 


187 


ive  resi- 
ive  resi- 
years  of 

at  Chip- 
s  not  at- 
.     1  was 

lexander 

nterview 
!ct  to  my 

his  inter- 
nterroga- 


ig  of  the 
-^er  under- 


red  to  me, 
)ing  to  at- 
tain Drew 
a  attack  a 
he  subject 
e  when  it 
leod  knew 

irered  that 
or  at  least 
e  I  did  not 
where  the 
expedition 
rt'are  what 
(imediately 

recollect 
le  burning 
i?ledge,  nor 
aroline,  on 

It  the  burn- 
in  that  ex- 
two  hun- 
where  the 

but  to  the 
in  the  expe- 
enterprize, 
at  which  I 


went  in,  I  was  not  on  the  Caroline,  and  took  no  part  in  her  destruc- 
tion. 

To  the  l-lth  cross-interrogatory  he  says :  Small  boats  of  about  four 
oars,  cannot  say  how  many  were  in  each  boat.  1  think  the  boats 
were  all  of  the  same  size  and  description,  except  the  one  I  went  in. 
Seven  boats  started.  The  boat  I  went  in,  was  a  rough  unpainted 
boat  without  a  keel. 

To  the  15th  cross-interrogatory  he  says  :  I  did  not  know  all  who 
embarked  in  the  expedition.  I  did  not  see  the  face  of  each  one  who 
went  on  the  expedition. 

To  the  16th  cross-interrogatory  he  says:  I  knew  all  in  the  boat 
with  me.  I  recognised  each  of  them,  but  cannot  say  that  I  spoke  to 
each  of  them  individually.  Capcain  Drew  commanded  the  expedi- 
tion.    I  commanded  the  boat  I  was  in. 

To  the  17th  cross-interrogatory  he  says  :"I  did  return  in  the  same 
boat  in  which  I  embarked,  and  the  same  persons  returned  with  me. 

To  the  18th  cross-interrogatory  he  says  :  They  did  not — two  failed 
in  reaching  the  Caroline  ;  1  comijianded  one  of  them  and  do  not  know 
who  commanded  the  other.  We  rowed  up  to  the  Buckhorn  Island — 
and  on  perceiving  the  fire  from  the  vessel  we  returned  to  Chippewa. 
I  have  no  knowledge  of  the  other  matters  inquired  after  by  this  in- 
terrogatory. 

To  the  19th  cross-interrogatory  he  says ;  I  da  not  know  of  any 
man  in  the  expedition  of  the  name  of  McLeod. 

To  the  17th  cross-interrogatory  he  says:  The  expedition  did  not 
embark  from  any  wharf  or  pier,  but  in  the  first  instance  from  the 
bank  of  the  Chippewa,  and  having  tracked  up  the  Niagara  river  about 
a  quarter  of  a  mile,  then  finally  pushed  ofT. 

To  the  21st  cross-interrogatory  he  says  ;  The  boats  all  lay  at  the 
brink  of  the  river  Chippewa,  at  a  short  distance  from  each  other,  the 
boats  all  started  at  the  same  time,  with  the  exception  of  the  second 
boat,  which  failed  to  reach  the  Caroline,  which  latter  started  a  short 
time  after  the  others. 

To  the  22d  cross-interrogatory  he  says :  The  two  boats  which  failed 
to  reach  the  Caroline  returned  at  the  same  time — I  do  not  know  when 
the  others  returned,  or  when  or  where  they  disembarl'ed.  I  did  not 
see  01'  recognise  any  person  engaged  in  the  expedition,  except  those 
in  my  own  boat. 

To  the  23d  cross-interrogatory  he  says  :  With  the  exception  of  a 
few  belonging  to  the  Royal  Navy.  I  believe  all  the  persons  compris- 
ing the  expedition  were  militia  volunteers.  They  were  not  levied  or 
drafted  but  came  as  volunteers.  They  were  not  marched  up  to  the 
boats.  Each  commander  of  the  boat  collected  his  own  crew  as  I 
beliefe. 

To  the  24'th  cross-interrogatory  he  says  :  The  force  was  not  dis- 
played in  military  order  previous  to  its  embarkation.  I  do  not 
know  whether  it  was  so  displayed  upon  its  disembarkation. 

To  the  25th  cross-interrogatory  he  says :  They  were  dressed  as 
usual  and  customary,  and  in  their  own  clothing,  and  not  in  any  uni- 
form. 1  have  no  recollection  of  what  particular  kind  was  any  part 
of  their  dress. 


Hi 


him 


\  ■■ 


■MM 


mJ'0M' 


u 


i 


1^ 


''if 


188 


GOULD'S   REPORTER. 


■Ml 


To  the  26th  cross-interrogatory  he  says :  The  party  in  general 
were  armed  with  swords  and  pistols.  1  think  the  greater  portion  of 
the  swords  were  usual  cutlasses,  and  were  procured  through  Capt. 
Drew. 

To  the  27th  cross-interrogatory  he  says :  I  have  no  knowledge  of 
the  matter  inquired  of  by  this  interrogatory. 

To  the  2Sth  cross-interrogatory  he  says  :  I  do  not  know  at  what 
time  the  force  which  reached  the  Caroline  disembarked.  I  and 
those  in  the  same  boai  with  mc,  and  the  people  in  the  other  which 
failed  to  reach  the  Caroline  disembarked  about  midnight.  The  night 
was  not  moonlight  or  cloudy,  but  rather  dark.  Those  in  my  boat 
dispersed  to  their  quarters  in  Chippewa.  I  know  nothing  of  the 
movements  of  the  others. 

They  were  not  together,  to  my  knowledge,  at  sunrise.  I  have 
not  seen  that  force  or  any  part  of  it  since  together  as  a  separate 
force,  but  have  seen  individuals  of  it  in  and  about  Chippewa  serving 
in  different  corps. 

To  the  29th  cross-interrogatory  he  says :  I  think  about  nine 
o'clock. 

To  the  30th  cross-interrogatory  he  says :  I  know  nothing  of  the 
matters  inquired  of  by  this  interrogatory. 

To  the  31st  cross-interrogatory  he  says  :  I  answer  to  this  the  same 
as  to  the  last  preceding  interrogatory. 

To  the  32d  cross-interrogatory  he  says  :  My  answer  to  this  is  the 
same  as  given  to  the  preceding  interrogatory. 

To  the  33d  cross-interrogatory  he  says :  I  have  no  knowledge 
whether  any  one  of  the  persons  found  on  board  of  the  Caroline  was 
killed  or  wounded.  I  did  not  see  any  one  killed  or  wounded.  I  did 
not  discharge  a  gun  or  pistol,  or  strike  any  one  with  any  weapons. 

To  the  3ith  cross-interrogatory,  he  says :  I  have  no  knowledge  of, 
or  reason  to  form  a  belief  respecting  the  matter  inquired  of  by  this 
interrogatory,  except  the  statements  of  individuals  who  have  inform- 
ed me,  and  I  believe  correctly,  that  no  person  was  on  board  of  the 
Caroline  when  she  was  cut  loose  and  sent  over  the  falls. 

To  the  35th  cross-interrogatory,  he  says :  I  have  never  been  on 
shore  at  Schlosser.  I  have  no  knowledge  whether  any  of  the  attack- 
ing party  went  on  shore  there. 

To  the  36th  cross-interrogatory,  he  says :  I  did  not  take  or  carry 
away  anything  whatever  from  the  Caroline,  and  have  no  knowledge 
of  the  acts  of  any  other  individual  in  reference  to  the  matters  inquir- 
ed after  by  this  interrogatory. 

To  the  37th  cross-interrogatory,  he  says  :  I  believe  I  heard  in  the 
course  of  the  day  of  the  destruction  of  the  Caroline,  that  a  steam- 
boat was  plying  between  Schlosser  and  Navy  Island.'  Do  not  recol- 
lect whether  I  heard  she  came  or  was  coming  from  Buffalo,  and  do 
not  recollect  that  the  name  of  the  steamboat  was  told  to  me  before 
her  destruction.  I  do  not  recollect  who  informed  me — Alexander 
McLeod  did  not. 

To  the  38th  cross-interrogatory,  he  says  :  I  do  not  know,  nor  have 
I  ever  seen,  to  my  knowledge,  or  even  heard  of  a  person  named  Syl- 
vanus  S.  Kigby. 


MCLEOD  S    TRIAL. 


189 


■I 


;eneral 
tion  of 
1  Capt. 

dge  of 

,t  what 

I  and 

which 
le  night 
\y  boat 

of  the 

I   have 

separate 

serving 

lut    nine 

y  of  the 

the  same 

[lis  is  the 

nowledge 
jline  was 
id.  I  did 
eapons. 
edge  of, 
f  by  this 
fe  inform- 
ird  of  the 

been  on 
le  attack- 
er carry 
mowledge 
ers  inquir- 

ard  in  the 
a   steam- 
not  recol- 
o,  and  do 
me  before 
•Alexander 

/,  nor  have 
lanied  Syl- 


To  the  39th  cross-interrogatory,  he  says  :  My  last  answer  is  a  re- 
ply to  this  interrogatory. 

To  the  40th  cross-interrogatory,  he  says  :  I  never  did. 

To  the  41st  cross-interrogatory,  he  says  :  I  do  not  know  whether 
he  was  on  board  the  Caroline  or  not,  and  have  never  heard  from  him 
that  he  was. 

To  the  4'2d  cross-interrogatory,  he  says  :  I  have  no  knowledge  of 
the  matters  inquired  of  by  this  interrogatory,  and  have  received  no 
information  respecting  them  from  the  said  Rigby.  I  have  no  know- 
ledge where  he  now  is. 

To  the  43d  cross-interrogatory,  he  says :  I  never  saw  him  to  my 
knowledge. 

To  the  44th  cross-interrogatory,  he  says  :  I  neither  know,  nor 
have  I  heard  McLeod  say  anything  upon  the  subject  of  this  interro- 
gatory. 

To  the  43th  cross-interrogatory,  he  says  :  Alexander  McLeod  nev- 
er told  me,  nor  any  person  in  my  hearing,  anything  relating  to  the 
Caroline. 

To  the  46th  cross-interrogatory,  he  says  :  I  neither  know,  nor  have 
heard  McLeod  make  any  statement  respecting  any  of  the  matters  in- 
quired after  by  this  interrogatory. 

To  the   47th  cross-interrogatory,  he    says:  I    never  spoke  to  Mc 
Leod,  and   never  heard  him  speak,  to  my  knowledge,  nor  to   my 
knowledge  did  I  ever  speak  in  his  presence. 

To  the  48th  cross-interrogatory,  he  says :  I  did  not. 

To  the  49th  cross-interrogatory,  he  says :  He  did  not,  as  I  know, 
or  have  understood  from  him. 

To  the  50th  cross-interrogatory,  he  says :  I  did  not. 

To  the  51st  cross-interrogatory,  he  says:  Seven  were  first  engag- 
ed in  the  expedition,  and  all  started  from  Chippewa  creek.  One 
boat  grounded  at  Buckhorn  Island :  it  was  the  boat  I  was  in,  and  it 
was  so  grounded  to  rest  the  crew. 

To  the  52d  cross-interrogatory,  he  says  :  No  person  was  employ- 
ed to  pilot  the  boats,  to  my  knowledge.  I  never  heard  the  name 
mentioned  in  this  interrogatory,  mentioned  before  this,  the  time  of 
my  examination. 

To  the  53d  cross-interrogatorj^,  he  says :  In  my  answer  to  the 
12th  and  13th  interrogatories,  I  stated  that  I  did  not  know  by  whose 
command  the  expedition  had  been  undertaken. 

To  the  54th  cross-interrogatory,  he  says :  I  have  no  knowledge 
whatever  of  the  matters  inquired  after  by  this  interrogatory. 

To  the  last  cross-interrogatory,  he  says  :  I  have  no  further  know- 
ledge touching  the  matters  in  question  than  what  I  have  already  stat- 
ed in  this  my  examination. 

J.  P.  BATTERSBY. 

Sworn  at  the  town  of  Hamilton,  Canada,  this  17th  day  of  Septem- 
ber, 1841,  before  me, 

SECKER  BROUGH,  Commissioner. 


:f 


ti,    ( 


PI 


100 


GOULD  S    REPORTER. 


U.* 


At  the  conclusion  of  the  reading  of  this  deposition,  the  court  adjourned 
10  2  o'clock. 

KRIUAY    AFTERNOON. 

On  the  resumption  of  the  proceedings  after  the  recess  for  dinner, 

Mr.  Spencer  said  tiiat,  as  the  remainder  of  the  depositions  contained 
merely  collateral  evidence,  he  proposed  to  introduce  at  present  other  oral 
testimony. 

William  Press  was  then  called  and  examined  by  Mr.  Spencer — I  now 
reside  at  Hamilton,  in  Canada;  1  am  a  tavern  keeper;  I  keep  the  Prome- 
nade House  ;  I  lived  at  the  village  of  Niagara,  from  1835  to  the  first  of 
last  July ;  1  was  a  tavern  keeper  tiiere ;  1  knew  MeLcod  well  at  that 
time  •,  1  made  his  acquaintance  soon  after  I  went  to  reside  at  Niagara ;  I 
lived  about  300  or  400  yards  from  him  ;  I  recollect  the  troubles  in  Cana- 
da;  1  was  at  Chippewa  only  once  during  those  troubles;  I  was  there  on 
the  29th  of  December ;  I  returned  to  Niagara  the  same  evening  ;  I  went 
on  business ;  I  took  two  passengers  in  a  wagon  from  Niagara  to  Chippe- 
wa ;  I  recollect  the  day  from  an  entry  in  my  cash  book  of  the  sum  I  re- 
ceived for  their  conveyance ;  I  also  recollect  it  by  the  burning  of  the 
('arolinc,  of  which  I  heard  the  next  day ;  the  magistrates  were  sitting 
there  ;  I  left  Chippewa  the  evening  of  the  29th,  a  little  after  dark ;  I 
|)Ut  my  horses  in  a  place  a  little  way  from  Davis's ;  Mr.  O'Keith  rode 
down  with  me,  and  Mr.  McLcod  rode  with  me  to  Stamford ;  I  mean  the 
prisoner  at  the  bar  ;  Stamford  is  about  six  miles  from  Chippewa ;  the 
roads  were  very  bad  from  Chippewa  to  the  Falls ;  they  always  are  in  wet 
weather  ;  in  the  state  in  which  the  roads  were  then,  it  would  take  an  hour 
and  a  half  to  ride  down  ;  McLeod  left  me  at  Mr.  Morrison's  gate  ;  I  knew 
Raincock,  who  has  been  spoken  of,  very  well.  He  left  Canada  before  the 
troubles ;  shortly  after  I  received  a  letter  from  him  from  New  York  ;  I 
expect  he  has  not  been  back  since  ;  I  have  heard  of  his  being  in  England 
since,  as  a  clerk  on  a  railroad ;  I  was  told  by  a  person  who  saw  him. 

Cross-examined  by  the  Attorney-General — The  wagon  of  which  I  speak 
was  an  open  wagon  ;  the  distance  from  Niagara  is  about  18  miles  ;  1  tra- 
vel about  frequently  with  passengers ;  I  always  make  an  entry  when  I 
take  passengers,  because  I  was  in  partnership  with  another  person ; 
O'Keith  was  clerk  of  the  steamboat  Coburg  ;  I  always  enter  the  date  of 
the  transaction ;  I  cannot  recollect  what  time  I  reached  home,  it  must 
have  been  after  ten  o'clock  ;  there  was  a  guard  at  Niagara ;  the  fire  com- 
pany was  the  principal  guard ;  I  was  a  member  of  that  company ;  we 
relieved  guard  every  hour  ;  I  was  drawn  on  guard  that  night ;  it  was  an 
independent  company,  and  we  always  drew ;  I  was  not  on  guard  that 
night ;  I  believe  I  spoke  to  some  one  respecting  the  time  I  might  have 
been  at  home  that  night;  I  might  have  said  I  was  there  about  nine 
o'clock  ;  it  was  not  before  sundown  that  I  left  Chippewa  ;  it  was  twilight ; 
I  arrived  in  Chippewa  before  dinner ;  I  saw  McLeod  in  Chippewa ;  he 
asked  me  when  I  was  going  back  again,  I  told  him ;  he  asked  me  if  I 
would  take  him  down  ;  I  saw  him  some  time  before  I  stai-ted,  for  I  know 
I  waited  for  him  and  got  very  impatient ;  I  believe  he  got  into  my  wagon 
at  Davis's  ;  when  the  roads  are  bad  it  usually  takes  me  about  four  hours 
to  drive  to  Niagara ;  I  hud  to  walk  my  horses  some  times ;  from  Chip- 
pewa to  Stamford  the  roads  were  very  bad,  the  other  part  was  better ; 
McLeod  had  not  a  horse  there ;  I  have  no  recollection  that  he  had  a 


MCLEOD  S   TniAI-. 


191 


horse ;  my  recollection  is  porfcct  thnt  it  was  that  day  ;  I  might  have  been 
at  Cliippcwu  six  moiitlis  before  ;  I  win  ii(»t  tlicn;  bdon!  (hiring  th(!  occu- 
pation of  tlio  island  ;  I  was  not  tiiorc  again  until  thn  summer;  the  burn- 
ing  of  the  (Jurolino  fixed  the  day  on  my  nrollection ;  I  don't  recollect 
l!ie  day  on  which  tlie  island  was  evncunlcd  ;  I  don't  recdllect  that  I  ever 
told  sheriil"  Stone,  of  Niagara,  lliat  1  could  not  recdllrrt  that  McLeod  rode 
with  mo  that  night ;  I  don't  believe  I  ever  did  ;  1  rec^illect  hearing  of 
McLeod's  arrest;  I  was  told  he  referred  to  uw.  for  proof  of  where  he 
was,  but  he  never  sent  for  me  ;  I  was  always  convin('ed  he  was  not  present 
at  the  burning  of  the  Caroline ;  1  have  never  said  I  was  doubtful  about 
it  ;  the  two  persons  that  I  took  up  were  Mr.  O'Kciili  and  Mr.  Troop  ; 
l.)"Keith  I  took  again  with  Mr.  McLeod  ;  1  received  §.5  for  the  conveyance 
of  Troop  and  O' Keith. 

Did  you  carry  them  up  and  bring  (^"Keith  l>ark,  for  Sr)  ?  It  may  have 
been  so.  Did  you  go  on  guard  on  your  return  .'  No.  Did  you  make 
the  entry  then  ?  It  is  like  1  did.  llave  ynu  a  reenUcction  of  the  act? 
No.  Might  it  not  have  b(  en  the  next  week  ?  No,  certainly  not — the 
other  entries  follow  on  under  the  next  day.  Might  you  not  have  made  it 
liie  ne.xt  morning?  I  think  not — that  would  have  been  quite  unusual, 
^'ou  recollect  they  paid  $5  ?  Yes,  because  it  is  entered.  Where  did 
they  pay  it  ?  I  don't  know.  Who  was  'J'roop  ?  I  don't  know — he  was 
a  stranger  to  me.  Was  the  niglit  dark  .'  No.  Was  it  moonlight  ?  I  am 
not  sure,  but  it  wasn't  very  dark.  May  it  not  be  that,  as  you  don't  recol- 
lect receiving  the  $5,  that  it  may  have  l)ecn  received  at  some  subsecjuent 
time  ?     No. 

VVhen  you  left  McLeod,  did  he  intend  going  on  to  Niagara  ?  No.  You 
lion't  know  any  thing  of  him  after  he  got  out  of  yoin*  wagon  ?*  No.  Did 
he  ask  you  to  stop  with  him  ?  No.  Did  you  ever  say  that  your  evidence 
wouldn't  be  of  avail,  as  McLeod  had  time  enough  to  go  to  Schlosser  and 
back  again  I     Yes. 

The  proceedings  of  the  court  were  here  interrupted  by  a  terrific  hail 
storm.  The  court  room  became  almost  dark  as  night,  and  the  rattling  of 
the  hail  against  the  windows,  some  of  which  were  much  broken,  over- 
powered the  voice  of  the  witness.  The  rain  fell  in  torrents,  the  lightning 
flashed,  and  the  thunder  rolled  for  some  time  after,  and  rain  fell  through 
the  ceiling  of  the  court  room  in  copious  showers.  When  the  storm  sub- 
sided, the  examination  was  resumed. 

I  may  have  said  that  my  evidence  would  not  be  of  much  importance  to 
McLeod,  as  he  might  have  got  a  horse  and  gone  back  twice  from  the  time 
I  left  him  to  the  time  the  act  was  done.     The  roads  were  soft  and  miry. 

John  W.  Morrison,  examined  by  Mr.  Spencer — I  live  at  Stamford,  in 
Upper  Canada  ;  I  have  lived  there  six  years  ;  I  removed  from  Toronto  j 
I  arrived  in  this  country  from  Europe  in  June,  1835  ;  1  know  Alexander 
McLeod,  perfectly ;  I  made  his  acquaintance  in  1836  ;  I  had  seen  him 
occasionally  from  that  time ;  I  heard  of  the  destruction  of  the  Caroline 
on  tly  morning  of  the  30th  Dec(!mber,  1837,  about  eight  o'clock ;  my 
boy  told  me  that  Col.  Cameron,  late  of  the  regiment  that  I  belonged  to, 
wanted  to  see  me  at  the  gate ;  I  went  to  the  gate  and  saw  him,  and  he 
asked  me  if  I  had  heard  the  news  ;  I  asked  him  what  it  was ;  he  told  me 
a  party  had  cut  out  the  Caroline,  and  brought  her,  and  sent  her  over  the 
Falls ;  he  said  it  was  done  the  night  before ;  I  then  said  to  him,  your 
friend,  McLeod,  is  in  our  house,  won't  you  come  up  and  see  him  ?     He 


■■   M    H 


nw 


w  ';i^«'^*^' 


V 

I'     {J; 


102 


GOULD  S   REPORTER. 


IV 


w 


begged  to  bo  excused,  as  ho  was  in  a  great  burn  ;  be  was  travelling  in 
a  wagon;  lie  gave  rnu  a  piccf  of  wood,  wliicb  lu;  said  was  part  of  tbf 
Caroline  ;  I  cut  a  piccf  from  it,  and  nturned  tlic  remainder  to  liim  ;  I  un- 
derstood it  had  l«;cn  got  under  the  F.ills ;  I  beard  several  people  pass  t\v 
gate  during  tlie  day,  and  make  remarks  on  the  burning  of  tbe  Caroline. 
Col.  Cameron  was  an  arquaintance  of  mine  ;  wo  served  togetber  for  four 
teen  years  in  France,  Spain,  and  Portugal,  under  the  great  Duke  of  Wel- 
lington. McLeod  was  then  in  my  eottagc  ;  be  came  there  about  balf-pasl 
seven  the  night  before,  and  slept  in  our  |)arlor;  be  drank  tea  there  that 
night ;  he  took  his  breakfast  in  tbe  same  room  that  he  slept  in  at  my  cot- 
tage ;  MeLeod  and  myself  retircfd  to  bed  about  half-past  twelve  o'clock  ; 
Mr.  McLeod  was  an  old  acquaintance  ;  he  was  not  used  as  a  stranger, 
and  I  left  him  in  the  evening  with  the  family ;  about  half-past  nine,  or 
from  that  to  ten,  we  sat  down  and  had  a  tumbler  of  toddy  ;  be  had  not 
left  his  room  fluit  morning  when  I  saw  Col.  Cameron;  when  I  returned 
to  the  cottage  from  Col.  Cameron,  I  said,  "  McLeod,  what  do  you  think 
has  bappfiued  ?"  I  then  told  him  Col.  Cameron  bad  just  told  me,  that  a 
party  bad  gone  last  night  and  cut  out  the  Caroline,  and  sent  her  over  the 
Falls;  be  said,  "you  don't  say  so;"  I  said  I  understood  it  was  so;  Mc- 
Leod said,  "  I  would  to  God  I  had  been  there — Captain,  where  is  Arcby  ? 
I  wish  you  would  tell  him  to  get  my  horse  ready."  Archibald,  my  .son, 
went  otf  to  g(!t  tbe  horse  from  tbe  stable;  McLeod  was  pressed  not  to 
think  of  going  without  breakfast ;  be  agreed  to  remain  ;  he  dressed  before 
breakfast,  and  after  breakfast  be  went  down  to  tbe  gate  where  bis  horse 
was  ;  he  rodi;  up  towards  Cbip|)ewa  ;  I  did  not  see  McLeod  again,  I  think, 
until  tbe  afternoon  of  the  2d  of  January  following. 

Cross-examined  by  Mr.  Ilawley — My  age  is  58  ;  I  was  born  in  Ayr- 
shire, North  Britain ;  I  was  in  service  under  Sir  John  Moore,  who  was 
killed  at  Corunna,  and  afterwards  under  his  Grace  tbe  Duke  of  Wel- 
lington. 

Mr.  Hawlcy — Were  you  drafted  into  the  army  ? 

Witness  (with  great  astonishment) — Did  you  ever  hear  of  an  officer 
being  drafted  into  his  majesty's  service  ?  (Laughter.) 

Mr.  Ilawley — How  did  you  get  in  ? 

Witness — As  other  gentlemen  do. 

Mr.  Ilawley — Were  you  drafted  from  the  militia  ? 

Witness  (with  a  Scotch  accent) — I  beg  you  will  not  talk  to  me  about 
being  drafted,  for  I  cannot  bear  it,  as  a  British  officer  ! 

Mr.  Ilawley — Well,  I  am  a  plain  republican,  I  don't  know  much  about 
these  things.  Will  you  tell  me  how  you  got  into  tbe  service,  an4  in  what 
regiment  and  capacity. 

Witness — I  entered  the  British  army  in  1807  as  ensign  in  the  79th  re- 
giment of  Highlanders. 

Mr.  Hawley — Is  that  a  commissioned  office  ? 

Witness  (with  apparent  astonishment) — I  should  think  so.        , 

Mr.  Hawley — IIow  did  you  get  it  ? 

Witness — By  my  friends.  My  father  was  in  the  service  under  till  Earl 
of  Stair  and  George  II.,  which  is  a  pretty  long  story. 

Mr.  Hawley — Was  your  commission  purchased  for  you  ? 

Witness — I  purchased  it  for  myself  in  1807. 

Mr.  Hawley — How  long  did  you  remain  in  the  service  in  Europe  ? 

Witness — I  remaiDed  until  1821,  upwards  of  14  years. 


Mr. 
Witi 
Mr. 
Witr 
Mr. 
Witri 
Mr.  1 
Witn 
I  serve 
Mr.  I 
Witn 
Mr.  [ 
Witm 
Mr.  I 
Witnc 
as  forme 
Mr.  H 
Witne 
Mr.  H 
Witne 
in  his  lift 
Mr.  H 
in? 

Witnej 
when  he 
out   rappi 
lect  who 
say  much 
Mr.  Hi 
Witne; 
and  was  i 
and  very 
Mr.  II 
Witnes 
table,  myi 
Mr.  Hj 
Witnes 
Charley 
Mr.  Ha 
Witnesi 
Mr.  Ha 
Witnes: 
Mr.  Ha 
Witnesi 
Mr.  Ha 
Wigie 
and  Sophit 
Mr.  Ha 
Witnesi 
now  be  24 
of  Jersey. 
Mr.  Ha 


!Sf 


illing  ill 
rt  f)f  the 
1 ;  I  un- 
pass  \\v 
^nrolint'. 
for  four 

of  Wei- 
half- past 
licre  that 
;  my  cot- 

o'clock  ; 
stranger, 

nine,  or 
c  had  not 

returned 
you  think 
ne,  that  a 

over  thp 

so ;  Mc- 
3  Archy  ? 
I,  my  son, 
led  not  to 
3ed  before 
:  his  horse 
in,  I  think. 

n  in  Ayr- 
u  who  was 
e  of  Wel- 


an  officer 


me  about 

nuch  about 
nd  in  what 

e  79th  re- 


jr  tli  Earl 


uropel 


MCLEOD'8   TRIAL. 


103 


jMr.  Ilawlcy — How  high  was  your  rank  when  you  left  ? 

Witness — I  was  a  lieutenant. 

Mr.  Hawley — Are  you  a  lieutenant  now  ? 

Witnes.s — I  retired  on  full  pay  as  a  li«!Utenant  in  his  majesty's  army. 

Mr.  Hawley — Are  you  on  fulf  pay  now  i 

Witness — Yes. 

Mr.  Hawley — Which  of  the  political  parlies  do  you  favor? 

Witness — Political  parties!  None  whatever!  I  serve  my  country — 
I  serve  the  government  be  it  what  it  will,  for  the  period.  (A  laugh.) 

Mr.  Hawley — When  did  you  come  to  America  .' 

Witness— 1  landed  at  New  York,  May  28,  1835. 

Mr.  Hawley — And  became  acquainted  with  McLeod  in  1830  ? 

Witness — Yes. 

Mr.  Hawley — And  you  remained  on  intimate  terms  with  him? 

Witness — Yes,  and  am  so  yet,  but  he  has  not  been  so  olten  at  my  house 
as  formerly. 

Mr.  Hawley — Did  he  often  come  to  eat  at  your  house  ? 

Witness — Oh,  yes. 

Mr.  Hawley — And  to  lodge  ? 

Witness — No.  I  don't  think  he  slept  there  above  three  or  four  times 
in  his  life. 

Mr.  Hawley — Were  you  in  the  house,  and  did  he  knock  when  he  came 
in? 

Witness — I  think,  to  the  best  of  my  knowledge,  I  was  in  the  house 
when  he  came ;  we  do  not  expect  gentlemen  to  come  into  our  house  with- 
out rapping  ;  if  they  attempted  it,  they  would  not  get  in.  1  do  not  recol- 
lect who  went  to  the  door,  it  might  have  been  myself;  McLeod  did  not 
say  much,  but  seemed  to  befogged  a  little. 

Mr.  Hawley — How  came  McLeod  to  stay  at  your  house  ? 

Witness — Because  we  asked  him ;  he  said  he  was  going  to  Niagara ; 
and  was  intending  to  return  in  the  morning  ;  I  told  him  it  was  a  long  way, 
and  very  muddy  ;  and  after  a  little  persuasion,  he  got  off  his  boots. 

Mr.  Hawley — What  next  ? 

Witness — I  fancy  they  were  carried  away  to  the  kitchen.     At  the  tea 
table,  myself,  my  wife,  and  sons,  and  daughters  sat  down  together- 
Mr.  Hawley — How  many  sons  have  you,  Mr.  Morrison  ? 

Witness — I  had  three  at  home,  at  the  time,  Archibald,  George,  and 
Charley. 

Mr.  Hawley — How  old  was  Archibald  at  that  time  ? 

Witness — He  was  eleven  at  the  time. 

Mr.  Hawley — How  old  was  George  ? 

Witness — He  was  two  years  old. 

Mr.  Hawley — How  old  was  Charley  then  ? 

Witness — He  must  have  been  very  young. 

Mr.  Hawley — How  many  daughters  had  you  at  home  ? 

Wi|^ss — Let  me  think,  I  believe  I  had  four,  Ellen,  Harriet,  Emma) 
and  Sophia. 

Mr.  Hawley — How  old  was  Ellen  then?     .  . 

Witness — She  was  born  in  France  on  the  6th  of  June,  1817,  and  must 
now  be  24.  The  next  was  two  years  younger,  she  was  bcrn  in  the  island 
of  Jersey. 

Mr.  Hawley — Was  your  lady  at  home  ? 

25 


f,1 

1 


I  ' 


i,    IP  ■  ; 


•■•l 


Mi 

1-     ''■:- 


J 


'.t         ! 


i-  WM 


i,,_:i 


194 


GOULD  S  REPORTER. 


Witness — My  wife;  ? 

Mr.  Hawlfv — Vcs. 

Witness — Uliich  vifc  ?     I  had  two  wives. 

(Here  the  audience  were  convulsed  with  tliat  which,  but  for  the  stern 
ncss  of  tiio  court,  and  their  rigid  exaction  of  order,  would  imve  proved 
an  open  outhreak  of  Inujihter.     Tiie   mind  of  tiu;   witness  iiad  doubtless 
been  inatlvertently  thrown  back  ti[)on  by-gonu  days,  rather  than  the  cot. 
tuge  scene  under  consideration.) 

Mr.  Hawley — Had  Mr.  McLeod  walked  to  your  place  ? 

Witness — I  suppose  lie  had  rode,  because  ho  generally  rode. 

Mr.  Huwlcy — Uid  you  put  his  horse  away  i 

Witness — No,  Archibald  had  care  of  the  horses;  McLeod  always  had 
a  spare  horse  in  my  stable,  and  a  wagon  ;  ho  had  a  great  deal  of  business 
at  that  time. 

Mr.  Hawley — What  made  you  think  that  McLeod  was  a  little/«^'i,'crf  ? 

Witness — Because  he  was  all  muddy,  and  cold,  riding  in  a  wagon,  or 
any  way,  whiitevcr,  that  ho  might  come. 

Mr.  Hawley — Do  you  know  what  way  he  came  tlicrc  ? 

Witness — 1  tell  you  plainly,  1  do  not  know  what  way  he  came  there ; 
but  I  have  reason  to  suppose  that  he  rode. 

Mr.  Hawley — When  a  gentleman  comes  to  your  house,  to  stay  over 
night,  ilo  you  not,  as  a  matter  of  course,  ask  if  he  has  a  horse,  and  sec 
that  it  is  put  up  ? 

Witness — McLeod  knew  the  barn  as  well  as  I  did,  and  could  put  his 
horse  up  as  well  as  1  could. 

Mr.  Hawley — But  did  not  Archy  see  to  such  matters  ? 

Witn.ss — He  did,  when  told  to  do  so. 

Mr.  Hawley — Did  you  tell  him  to  do  so  that  night  ? 

Witness — When  I  told  him  to  supper  the  horses,  I  told  him  if  he  found 
McLeod's  horse  at  the  gate,  to  supper  him  also.  McLeod  had  two  horses 
with  m'!,  Bob  and  Charley,  one  had  been  at  my  place  two  months. 

Mr.  Hawley — What  hour  of  the  night  was  it,  when  you  took  your  tea  ? 

Witness — It  might  be  about  eight  o'clock ;  the  family  retired,  I  think, 
about  nine  or  ten  o'clock. 

Mr.  Hawley — Do  you  generally  have  a  bed  in  your  parlor  ? 

Witness — We  do  not ;  it  was  upon  a  stretcher. 

Mr.  Hawley — When  was  the  toddy  brought  on  ? 

Witness — It  might  have  been  pretty  nearly  ten  o'clock. 

Mr.  Hawley — What  was  the  subject  of  conversation,  that  occupied  you 
till  so  late  an  hour  as  half  past  twelve  ? 

Witness — Really,  I  do  not  recollect  the  subject  of  conversation. 

Mr.  Hawley — Did  you  ask  him  in  relation  to  the  movements  at  Navy 
Island  ? 

Witness — I  do  not  remember  that  I  asked  him  about  any  particular 
movements — though  it  is  probable  I  did  ask  him  about  Navy  Island. 
■*'  Mr.  Hawley — Did  he  tell  you  the  state  of  affairs  at  Chippewa  ?• 

Witness — Not  particularly. 

Mr.  Hawley — Did  he  say  any  thing  about  the  steamboat  Caroline  ? 

Witness — It  strikes  me  there  was  very  little  known  of  the  Caroline  at 
that  time.  We  had  heard  she.  was  assisting  the  Navy  Islanders,  in  carry- 
ing munitions  of  war,  but  I  did  not  trouble  myself  with  the  like  of  that. 


;he  stern- 
c  proved 
doubtlcs^- 
n  the  cut- 


Iwuys  hail 
if  busineb> 

fugiicd  ? 
wagon,  or 

me  there ; 

)  stay  over 
se,  and  see 

uld  put  his 


if  he  found 
two  horses 
iths. 

your  tea  ? 
■ed,  I  think, 


;cupied  you 

ion. 

nts  at  Navy 

y  particular 

jland. 

ra?* 

roline  ? 

Caroline  at 
rs,  in  carry- 

of  that. 


MCLEOD  S   TRIAL. 


IJ.-) 


Mr.  Iluwiey — But  if  timt  boat  wtt.s  iu;lu:illy  ussisiing  the  rebels,  would 
vou  not  have  tlioiiglit  ill  of  it  ? 

Witness — I  did  liiink  ill  of  it — it  was  niiturul. 

Mr.  S|ii  iicer  lliouglit  lliat  an  uiijusliliuMc  lutitudo  was  taken  by  llir 
couii.scl  I'ur  tlie  pro.sceiuiuri. 

The  witness,  wliost"  ft(liii<r  had  been  evidmlly  \s roiiglil  up  to  u  high 
pitch,  eould  no  longer  rrfriiin  ;  but  exelaiimd — I  will  muke  the  best  an- 
swers I  can  aceordiiifi;  to  my  knowledge  and  belief,  so  lielp  nie  (ioil. 

Here  Mr.  lluwley  pat  a  (juestion  to  whii-h  liie  court  peremptorily  ob. 
jected. 

Mr.  Ilawley,  addri'ssing  the  court — "  With  all  humility — '' 

Judge  Gridley,  not  a  word  further  about  humilit\ — Take  your  .seat  and 
oxandne  the  witness. 

Mr.  Hawley — Uo  you  remember  any  oilier  time,  when  he  came  to  your 
house  ? 

Witness — Yes,  he  came  to  my  house  in  a  wagon,  with  another  gentleman, 
on  the  morning  of  the  3()th  of  January.  He  introduced  the  gentleman  to 
nie,  and  1  understood  hiui  to  be  a  member  of  parliament  from  Sarniu  in  the 
western  district.     I  have  not  seen  that  gentleman  since,  to  my  knowledge. 

Mr.  Ilawley — We  want  you  to  state  the  words  that  were  us(;d  between 
you  and  the  Colonel. 

Witness — "Good-morning,  Mr.  Morrison."  "  Good-morning,  Colonel."' 
"  Have  you  heard  the  news  V  "  What  is  it.  Colonel  ?  "  I  am  told  they 
have  cut  out  the  Caroline  last  night,  and  sent  her  over  the  fails."  I  tliink 
1  had  heard  of  her  before,  as  being  connected  with  the  alfair  at  Navy  Island. 

Mr.  Hawley — Did  he  state  any  particulars?  He  did  not.  Do  you 
know  where  Mr.  Cameron  came  from  1  I  suppose  he  came  from  tlie 
Falls ;  he  lived  on  Young  .street,  Toronto. 

As  to  the  fragment  of  wood — describe  it?  It  was  about  ten  inches  in 
length  and  four  in  width  ;  I  took  off  about  three  inches  with  a  saw  ;  he 
waited  till  I  sawed  it  otl"  and  returned  to  him;  I  cannot  say  whether  1 
mentioned  the  subject  when  I  first  went  to  the  hou.se  ;  I  think  1  did  not 
show  it  to  McLeod,  but  I  might  have  done  so ;  I  showed  it  to  him  after- 
wards ;  it  was  about  8  o'clock  in  the  morning,  and  the  family  were  up. 
How  long  after  this  was  it  before  McLeod  left  your  house  ?  I  think  it 
was  pretty  nearly  ten  o'clock  when  I  went  down  to  the  gate  with  him. 

Mr.  Hawley — Have  you  not,  Mr.  Morrison,  pretty  strong  feelings  and 
attachments  for  McLeod  ? 

Witness — It  was  once  so  ;  but  not  so  much  of  late  (recollect  I  am  on 
my  oath ;)  I  am  not  related  to  him  in  any  manner. 

Can  you  state  why  once  you  took  a  greater  interest  in  him  than  another 
man? 

The  court  again  interfered,  and  remarked  that  they  could  not  see  that 
the  cause  of  justice  was  to  be  furthered  by  pursuing  this  subject  with  so 
much  particularity.  The  witness,  addressing  himself  to  the  court,  said — 
"  I  cl«im  your  Lordship's  protection."  The  court  proceeded  to  state, 
that  many  questions  had  been  put,  which  were  well  calculated  to  insult 
the  witness,  particularly  in  relation  to  his  being  drafted,  &c.  His  views 
were  now  distinctly  understood,  that  this  was  not  the  place  where  a  wit- 
ness was  to  be  showed  up  and  insulted  by  uncalled  for  interrogatories. 
All  that  is  essential  to  elicit  truth  will  be  cheerfully  submitted  to,  but  further 
than  this  will  not  be  allowed.  .^...w-      .a  « 


t 


n  I 


■    l.'i    M 


(  : 


1^     r4 


■  i, 


106 


UOULD  H   RRPORTKR. 


I.  n 


Mr.  Ilfiwltiy — May  I  1x5  excuflofl  from  going  on  with  tho  oxnrninntion  ? 

The  cmirt — Why,  sir  f 

Mr.  Iliiwli-y — 1  cuiiiiot  go  on  if  I  iiin  not  allowed  to  put  nik-Ii  (|ti(>stioiH 
(IK  I  iierrn  (tsscntial. 

Tho  court — \V»'ll,  sir,  then  you  niunt  Htop. 

The  Attornt'y-(ji«'ncral  reiimrlird,  that  his  rollcnguc,  Mr.  Ilnwiey,  oould 
not  havi!  intendrd  any  thing  like  diMre.s|)(H;i  to  th(!  court,  or  nny  thing  not 
calculutcid  to  elicit  truth — tJKtugh  couiis*;!  uro  often  cnlled  on  to  put  (pics, 
tions  which  are  painful  to  all  parlies. 

The  court  would  not  say  timl  it  was  an  intentional  dc^parture  from  tho 
ndes  of  propriety,  but  the  etlect  was  Huch.  All  tho  (picstions  alwut  his 
txiing  drafted  and  his  commission,  had  no  more  to  do  with  the  cuso  than  tlie 
liistory  of  the  Kgyptians. 

The  Attorney-CJencral  then  proceeded  with  tho  cross-examination. 

The  Attorn«'y-tieneral — Have  you  ever  said  to  uiiy  one  that  you  could 
not  lix  the  day  McLeod  was  with  you  ? 

Witness — No,  never. 

Did  you  ever  say  any  thing  of  this  kind  to  Mr.  Dcfield,  of  Kingston  ? 

Witness — I  would  not  bo  seen  at  all  with  him. 

Judge  Clriilley,  to  tho  witness — Vou  will  restrain  your  feelings. 

Attorney-General — Mr.  Ucficld  has  been  at  your  house  ? 

Witness — lie  was  once  brought  to  my  house,  but  never  came  by  invitation. 

Attorney-lieneral — Was  Mr.  Dofield  at  your  house  in  January,  183S  ? 

Witness — 1  do  not  recollect ;  he  was  at  one  time. 

Attorney-General — Was  ho  ever  at  your  hous(3  more  than  once  ? 

Witness — 1  think  he  was,  but  was  never  asked  to  my  house  ;  he  has 
never  been  in  my  house  more  than  twice  to  the  host  of  my  knowledge. 

Attorney-General — Do  you  recollect  at  any  time  of  saying,  in  the  pre- 
sencc  of  Mr.  Defield,  that  you  hoped  the  United  States  would  get  hold  of 
McLeod,  that  they  might  punish  him  for  tho  affair  of  the  Caroline  i 

Witness — Never,  never. 

Attorney-General — From  what  point  did  Colonel  Cameron  come  that 
morning  ? 

Witness — It  appeared  to  me  that  Colonel  Cameron  had  come  from  the 
Falls  that  morning ;  I  did  not  learn  from  him  how  he  had  got  the  infor- 
mation at  all ;  I  do  not  recollect  what  piece  of  wood  it  was ;  I  am  not  a 
judge  of  wood  ;  it  was  a  piece  painted  ;  I  think  there  was  green  paint  on  it. 

Attorney-General — Colonel  Cameron  told  you  it  was  a  piece  of  the 
Caroline?  - 

Witness — He  did. 

Attorney- General — But  did  not  tell  you  how  he  had  got  it  ? 

Witness — No,  no. 

Attorney-General — Do  you  say  that  you  had  heard  of  the  Caroline  be- 
fore? 

Witness — We  had  spoken  of  it. 
»  Attorney-General — Who  told  you  that  the  Caroline  was  carrying  mu- 
nitions of  war,  Sac  ? 

Witness — I  think  I  was  up  there  the  day  before,  at  Chippewa. 
Attorney-General — ^You  there  learned  that  the  Caroline  was  conduct- 
ing in  this  manner  ? 

Witness — ^Yes,  from  Col.  Kenneth  Cameron,  not  the  one  that  I  talked 
with,  Col.  Cameron,  commandant  under  Sir  Allan  McNab,  with  the  rank  of 


irryipg  niu- 


MCLkUU  S    TRIAL. 


197 


Colonel  in  Upper  Canada;  he  and  I  were  litutcnants  together  in  the  7Uth 
re^iinent  a  lew  yeiu'H. 

Mr.  Speneer — Vou  had  heiter  answer  in  few  words. 

Jiidgt;  (tiidley — Just  answer  the  precise  (piestions  put  to  yon. 

Witness — i  gcnierully  leiirM(  d  liow  tilings  were  gniiijj;  on  at  ins  ofl'iee  in 
Chippewa  ;  I  usually  eulled  tlurt;  and  saw  iiiui  ;  I  had  heeii  at  the  ollice  of 
Col.  (luMjeron  the  day  i)e('ore  ;  I  tlien;  hariied  tliut  a  vessel  was  seeneurry- 
ing  tnuiiitions  of  war,  vVe.,  hut  diil  not  make  particular  iiii|uiry  ahout  it. 
There  was  not  at  this  lime  any  particular  cause  of  dissatisl'aclion  lietwicn 
myself  and  McLeod. 

Attorney. General — Suhsequenlly  st)nie  domestic  matter  occurred,  which 
<;ave  yi»u  dissatisfaction  ? 

Witness — Now  1  hey  you  that — 1  would  he  very  happy  not  to  answer 
further. 

Attorn<!y-General — Have  you  some  ohjections  to  state  muro  particu- 
larly what  was  the  cause  ? 

Mr.  Spencer — 1  have,  if  the  witness  has  not. 

Attorney-General — When  was  the  nixt  time  you  sow  McLcod  ? 

NVitiiess — I  think  the  t2d  of  .lanuary  ;  I  think  he  staid  all  nij^ht  then  ;  I 
('o  not  recollect  what  time  Ik;  came  to  my  house  on  that  occasion  ;  I  think 
more  than  prohahle  that  he  came  from  Chipp<!wa. 

Attorney-General — Vou  think  it  was  the  *2d  of  .Faniuiry  ? 

Witness — I  do  ;  my  son  was  expected  over  from  'J'oronto,  with  the  family, 
on  Christmas  day  ;  he  did  not  come,  hut  came  on  New  Year's  morning, 
iind  next  day  1  saw  McLeod  ;  1  think  McLeod  sle|)t,  on  that  nij^ht  as^ain, 
in  the  parlor  ;  1  caimot  tell  how  long  McLeod  remained  with  me  at  that 
time  ;  I  have  testilied  on  a  former  occasion  in  this  matter  ;  that  it  was  about 
the  middle  of  November  ;  you  may  rest  assured  it  is  as  I  have;  now  stated  ; 
I  cannot  tell  how  Mr.  McLeod  came  on  thi!  '2t\  of  January  ;  there  was  a 
spare  horse  at  my  stable  three  months  for  Mr.  McLeod  ;  he  did  not  |)ay 
me  for  it;  it  was  perlectly  gratuitous;  he  breakfasted  with  me  usually 
when  he  staid  ut  my  house  all  night ;  that  was  a  matter  of  course  ;  lie  staid 
with  mc  on  the  night  of  the  S.'jlh  of  December ;  1  don't  recollect  him  stay- 
ing any  night  after  the  *2d  of  January  ;  my  reasons  you  may  know. 

By  Mr.  Spencer — Angus  McLeod  also  used  the  hors(;s  while  they  were 
kept  at  my  stable  ;  Angus  ia  younger  than  Alexander  McLeod. 

Archibald  Morrison,  son  of  the  last  witness,  and  an  intelligent  looking 
lad,  was  then  sworn,  and  examined  by  Mr.  Spencer — I  know  Mr.  McLeod; 
I  have  seen  Col.  Duncan  Cameron  several  times ;  he  lives  in  Toronto,  I 
believe  ;  I  heard  about  the  destruction  of  the  steamboat  Caroline  from  my 
father  ;  I  was  down  at  the  gate  when  Col.  Camerom  came  ;  he  told  mc  to 
tell  pa  he  wanted  him ;  it  was  about  8  o'clock  in  the  morning ;  there  was 
another  gentleman  with  Col.  Cameron ;  they  were  travelling  in  a  two 
horse  wagon.  My  father  went  down  and  I  went  with  him  ;  I  heard  Col. 
Cameron  say  the  Caroline  had  been  burned  and  sent  over  the  Falls ;  Mr. 
Alexander  McLeod  was  then  in  the  parlor  of  my  father's  house ;  he  can^ 
there  the  night  before,  and  I  think  it  was  before  tea ;  he  went  away  tmn 
morning  ;  I  think  it  was  about  8  o'clock  that  he  went  away ;  he  went 
after  breakfeat,  on  horseback,  towards  the  Falls, 

Cross-examined  by  the  Attorney-General — I  recollect  distinctly  about 
McLeod's  being  at  our  house  that  morning ;  I  shall  be  fifteen  years  of  age 
this  month ;  Mr.  McLeod  did  not  stay  all  night  at  our  house  very  often ; 


1 

m 

! 

\     ICI 

. 

f 

9\ 

1 

!•: 

u 

1 

• 

m 

■  t 

,4 


u 


n 


198 


GOULD  S   REPORTER. 


id' 


\ri 


u  I 


If' 
i 


he  camo  that  night  I  think  hetwoen  7  and  8  o'clock  ; 
the  28tli  of  Decenil)cr  that  lio  camo  ;  I  tliink 


it  might  have  been 


ic  came  on  horseback  ;  1 
recollect  putting  his  horse  away  ;  I  used  to  do  that  when  he  came ;  I  donl 
know  Colonel  Cameron  to  speak  to ;  I  have  not  seen  him  very  recently  ; 
1  don't  recollect  seeing  him  since  that  morning ;  I  don't  recollect  when  I 
saw  him  before; ;  I  dont't  recollect  any  particular  tirae  when  I  saw  him  be- 
fore that ;  I  don't  know  who  the  person  was  that  was  with  Colonel  Cam- 
eron ;  I  recollect  Colonel  Cameron  coming  that  morning,  because  it  was  the 
morning  we  heard  of  the  bin-ning  of  the  Ciiroline  ;  I  think  I  knew  then  who 
Colonel  Cameron  was  ;  it  was  about  three  years  ago ;  it  was  in  1837  ;  I 
have  heard  it  frequently  said  it  was  1837  ;  I  think  I  unsaddled  McLeod's 
horse,  and  I  am  certain  about  it  being  the  night  before  the  burning  of  the 
Caroline  ;  I  have  been  examined  before  about  this ;  I  signed  my  examina- 
tion ;  I  go  to  church  wiien  I  am  at  home — it  is  the  English  church. 

By  Mr.  Spencer — Colonel  Cameron,  gave  my  father  that  morning  a 
piece  of  the  Caroline  ;  Mr.  McLeod  saw  it  that  morning  ;  I  saw  papa  show 
it  to  him  in  the  parlor ;  I  saw  McLeod  the  night  before,  but  I  am  not  sure 
that  I  saw  him  come  in  ;  1  think  he  rode  up  on  horseback  ;  I  had  frequently 
before  got  out  his  horse,  and  afterwards  also  ;  I  had  heard  before  about  the 
troubles  on  the  frontier. 

By  the  Attorney. General — T  think  Mr.  McLeod  was  there  again  on 
New  Year's  dav ;  [  don't  recollect  whether  he  staid  all  night. 

Margaret.  Morrison,  examined  by  M.  Spencer — I  am  the  wife  of  Lieut. 
Morrison,  who  has  just  given  his  evidence ;  I  have  known  McLeod  six 
years  ;  I  heard  of  the  destruction  of  the  steamboat  Caroline  ;  I  heard  it  in 
the  morning ; 


1  heard  the  boat  had  been  destroyed  the  night  before  ;  Col 


Cameron,  of  Toronto,  brought  the  intelligence  ;  he 


brought 


part  of  the 


boat;  I  saw  tlie  small  piece  that  Mr.  Morrison  cut  off;  Mr.  McLeod  was 
then  in  our  parlor ;  he  came  there  the  night  before  about  7  o'clock  1  think  ; 
he  took  tea  there  that  night ;  he  remained  all  night ;  Mr.  Morrison  would 
not  allow  him  to  go  away  that  night ;  Mr.  Morrison  and  Mr.  McLeod  sat 
up  until  past  12  o'clock  ;  I  was  in  the  room  with  them  sometimes  ;  they 
were  taking  a  glass  of  toddy  together  ;  I  was  the  last  to  go  to  bed  ;  Mr. 
McLeod  slept  in  the  parlor  on  a  "  stretcher,"  that  is,  a  bed  that  closes  up 
and  stretches  out  when  required  for  use  ;  Mr.  McLeod's  boots  were  taken 
from  the  parlor  and  put  before  the  kitchen  fire  a  good  while  before  bed 
time  ;  the  next  morning  thoy  were  in  the  same  place;  at  night  they  were 
wet,  but  the  next  morning  they  were  dry  ;  Mr.  McLeod  did  not  leave  our 
house  that  night  after  he  came  in  the  evening ;  he  could  not  have  left 
without  my  knowledge  ;  he  could  not  have  gone  without  coming  for  his 
boots,  and  he  could  not  have  got  them  without  my  knowledge ;  I  slept  in 
a  little  room  just  off  the  kitchen,  and  I  was  kept  awake  by  a  sick  child  ; 
there  was  also  a  watch  dog  there. 

By  the  Court. — I  saw  Mr.  McLeod  after  Mr.  Morrison  went  to  bed. 
It  was  past  12  o'clock,  or  near  one. 

HPy  Mr.  Spencer. — I  saw  him  again  about  eight  o'clock  the  next  morn- 
ing ;  I  had  been  up  about  an  hour  ;  he  was  in  the  parlor  when  Col.  Cam- 
eron came  along  ;  Mr.  Morrison  came  up  and  told  Mr.  McLeod  what  had 
taken  place ;  I  think  Mr.  McLeod  wished  he  had  been  there  ;  he  went 
av;ay  immedidtcly  after  breakfast ;  I  cannot  be  mistaken  about  the  night ; 
I  saw  him  again  as  he  returned  from  Chippewa  about  three  o'clock  in  the 
afternoon ;  he  did  not  turn  into  our  house  ;  he  went  right  on  to  Niagara ; 


have  been 
ieback  ;  1 
le ;  I  dont 
recently ; 
;ct  when  I 
w  him  be- 
onel  Cam- 
it  was  the 
,'  then  who 
n  1837  ;  1 
McLeod's 
ing  of  the 
r  examina- 
rch. 

morning  a 
papa  show 
m  not  sure 
frequently 
e  about  the 

I  again  on 

3  of  Lieut. 
ilcLeod  six 

heard  it  in 
cfore  ;  Col. 
part  of  the 
cLeod  was 
ck  1  think  ; 

ison  would 
kIcLeod  sat 
imes  ;  they 
bed;  Mr. 
xt  closes  up 
were  taken 

before  bed 
t  they  were 
)t  leave  our 
have  left 
ning  for  his 

;  I  slept  in 

sick  child  ; 

ent  to  bed. 

next  morn- 
1  Col.  Cam- 
)d  what  had 
;  he  went 
t  the  night ; 
;lock  in  the 
o  Niagara ; 


Mcleod's  trial. 


199 


he  was  on  horseback  and  had  a  cannon  ball  in  his  hand ;  it  was  said  it 
was  fired  at  him  from  Navy  Island. 

Cross-examined  by  Mr.  Jenkins — I  don't  know  how  Mr.  McLeod  came 
to  our  house  on  that  night,  whether  it  was  on  horseback  or  in  some  other 
way;  I  have  been  examined  before  on  this  subj(  ct  before  Judge  Bowen  ; 
I  had  heard  that  he  came  on  horseback,  but  I  did  not  see  him  ;  I  know 
that  Archibald  supperod  McLeod's  horse  that  night ;  I  don't  know  that 
Archy  put  his  horse  up  that  night  when  he  came  ;  I  only  know  from  hear- 
say that  Colonel  CamtM'on  came  that  morning  ;  I  never  saw  him  in  my 
life  ;  I  am  Mr.  Morrison's  second  wife  ;  Mr.  McLeod  supped  with  us  on 
Christmas  night  and  stayed  all  night ;  I  think  Mr.  McLeod  stayed  all  night 
lit  the  time  of  the  races  at  the  Falls ;  he  very  seldom  stayed  all  night ; 
lie  stayed  there  all  night  on  the  second  day  of  January.  I  know  that  it  was 
that  day  from  the  arrival  of  Mr.  Morrison's  second  son,  who  came  home  on 
the  first  of  January  ;  his  bed  was  on  the  stretcher,  and  on  the  second  of 
January  he  was  removed  up  stairs  to  allow  Mr.  McLeod  to  get  a  bed  ; 
the  family  and  Mr.  McLeod  were  on  terms  of  intimacy  ;  Mr.  Morrison's 
second  daughter,  Ellen,  lived  with  Mr.  McLeod  some  time  ;  1  don't  think 
they  were  married  ;  I  don't  know  how  they  lived  ;  I  know  nothing  about 
it ;  they  never  visited  our  house  together ;  she  returned  to  her  father's 
house  about  a  month  ago;  she  lived  with  McLeod  ever  since  she  left  her 
husband  until  he  was  arrested ;  the  piece  of  the  Caroline  was  burned  by 
mistake ;  Mr.  McLeod  is  not  a  married  man  that  I  know. 

By  the  Court. — Mr.  Morrison's  daughter  went  to  live  with  Mr.  McLeod 
about  two  years  ago. 

By  Mr.  Jenkina. — I  think  Mr.  McLeod  left  our  house  the  morning  after 
the  Caroline  was  burned  about  half  past  nine  o'clock ;  when  he  came  the 
night  before  his  boots  were  verj'^  dirty  with  mud. 

By  Mr.  Spencer. — I  have  been  married  to  Lieut.  Morrison  thirteen 
years. 

By  Mr.  Hall. — I  don't  recollect  McLeod  staying  any  night  after  the 
second  of  January ;  I  only  recollect  him  being  there  on  Christmas  night, 
the  night  of  the  burning  of  the  Caroline,  the  night  of  the  second  of  Janu- 
ary, and  the  night  of  tlic  races ;  Mr.  Morrison's  son  stayed  at  home  from 
ToroiTjto  at  that  time,  about  three  nights ;  I  am  not  mistaken  about  the  29th 
of  December. 

By  the  Attorney-General. — I  did  not  see  Col.  Cameron  ;  Mr.  Morrison 
told  me  it  was  him  ;  whatever  was  the  day  of  the  month  it  was  the  morn- 
ing that  Col.  Cameron  came  that  I  heard  of  these  things. 

By  Mr.  Spencer. — Those  things  became  the  subject  of  conversation  at 
the  breakfast  table  that  morning ;  the  intimacy  of  our  family  and  Mr. 
McLeod  was  broken  off  by  the  connection  of  McLeod  with  Mr.  Morrison's 
daughter  ;  when  she  returned,  a  month  ago,  she  came  to  see  her  father  ; 
she  appeared  to  be  well  provided  for  with  money. 

By  Mr.  Jenkins. — The  intimacy  of  the  family  with  McLeod  broke  off 
two  years  ago  last  July.  ^ 

Harriet  Morrison  examined  by  Mr.  Spencer.  ' 

The  Attorney-General  hoped  the  learned  counsel  would  allow  the  lady 
to  tell  her  own  story. 

Mr.  Spencer. — Examine  her  yourself,  sir,  according  to  your  own  notion 
of  propriety. 

The  Attorney-Greneral. — Proceed  Mr.  Spencer. 


, :[  .• 


J 


I,  /If 


200 


GOULDS   REPORTER. 


The  examination  was  then  proceeded  with  by  Mr.  Spencer. — I  am 
daughter  of  Mr.  Morrison ;  I  was  at  home  in  the  winter  of  1837  ;  I  have 
known  Mr.  McLeod  since  about  a  year  after  wo  arrived  in  the  country ; 
I  recollect  hearing  of  the  affair  of  the  Caroline  the  morning  after  it  had 
happened ;  1  heard  my  father  telling  Mr.  McLeod  in  the  parlor :  a  friend 
of  my  fatlier's  had  told  him  at  the  gate  ;  it  was  Col.  Cameron ;  I  saw 
McLeod  the  night  before ;  I  drank  tea  with  him  about  seven  o'clock ;  I 
retired  that  night  between  nine  and  ten ;  he  had  not  retired  before  I  did ; 
I  spent  my  evening  in  the  same  room  with  him;  the  whole  family  was 
there ;  I  saw  him  the  next  morning  at  breakfast ;  he  left  our  house  to  go 
to  Chippewa  at  nine  or  ten  o'clock. 

Cross-examined  by  Mr.  Jenkins. — We  usually  go  to  bed  about  nine  or 
ten  o'clock,  but  we  sat  up  that  night  on  account  of  Mr.  McLeod  being 
there  ;  I  don't  know  what  thq  conversation  was  ;  I  suppose  it  might  be 
about  the  state  of  the  times  ;  we  were  all  in  some  excitement ;  I  had  heard 
of  the  Caroline  going  to  the  island  with  munitions  of  war ;  I  heard  it  the 
day  before  ;  I  think  1  heard  she  had  been  going  for  two  or  three  days ; 
we  had  breakfast  that  morning  about  eight  o'clock ;  I  saw  McLeod  as  he 
returned  in  the  afternoon ;  he  had  a  cannon  ball  in  his  hand  ;  he  was  go- 
ing towards  Niagara ;  my  brother  returned  home  on  New  Year's  day. 

By  Mr.  Spencer. — Mr.  McLeod  stayed  at  my  father's  house  on  Christ- 
mas night :  1  did  not  hear  about  his  having  been  at  Buffalo ;  before  I  heard 
of  the  destruction  of  the  Caroline  I  heard  she  was  employed  to  carry  mu- 
nitions to  Navy  Island ;  heard  she  carried  powder  and  arms ;  I  under- 
stood it  was  to  aid  the  patriots ;  I  cannot  recollect  the  subject  of  conver- 
sation between  Mr.  McLeod  and  my  father  the  night  of  the  29th  De- 
cember. 

By  the  Attorney-General. — I  have  been  previously  examined  on  this 
subject. 

Mr.  Spencer  then  proposed  to  read  the  deposition  of  Colonel  Duncan 
Cameron. 

The  Attorney-General. — I  have  one  objection  to  the  deposition,  which 
I  know  will  call  on  me  the  rebukes  of  my  adversary.  It  is  a  case  in 
which  the  whole  testimony  is  thrown  into  the  general  interrogatory ;  in 
which,  the  whole  testimony  has  no  connection  with  the  previous  inter- 
rogatories. I  am  aware  that  the  Supreme  Court  have  decided  'that  a 
jgeneral  important  matter  may  be  answered  by  the  interrogatory,  if  it 
come  within  the  general  purview  of  the  previous  interrogatories.  The  ob- 
jection  was  taken,  that  you  could  under  a  sweeping  interrogatory  intro- 
duce any  matter.  The  Supreme  Court  overruled  it,  and  said  it  might  be 
under  the  general  interrogatory,  if  within  the  purview  of  previous  inter- 
rogatories. 

Mr.  Spencer. — It  is  proper  to  say  that  Messrs.  Gardner  and  Center 
were  both  present  at  the  examination  of  Col.  Cameron.  Col.  Cameron  is 
an  elderly  gentleman ;  we  had  intended  to  have  him  come  here  ;  it  so 
n^)pened  that  when  they  got  to  Canada  it  was  not  convenient  for  him  to 
cwne.  and  the  counsel  framed  the  interrogatory.  There  is  nothing  in  the 
deposhion,  except  the  proof  of  his  being  at  Chippewa,  the  night  the  Caro- 
line was  burnt.  If  the  Attorney-General  thinks  the  cause  of  truth  will  be 
promoted  by  excluding  the  testimony,  I  beg  he  will  state  the  reasons.  I 
do  not  intend  to  rebuke  the  Attorney-General,  or  to  censure  him,  and  yet 
I  do  intend,  if  occasion  require,  to  state  how  much  1  am  disappointed, 


spent  in 
o'clock  ii 
ing  after 
o'clock 
Hotel  Mc 
Cross-( 
States ; 
district  of 


MCLEOD  S  TRIAL. 


801 


a 


r. — I  am 

;  I  have 
country ; 
ter  it  had 
friend 
I  saw 
'clock;  I 
are  I  did ; 
imily  was 
ouse  to  go 

ut  nine  ir 
jGod  being 

might  be 
had  heard 
eard  it  the 
iree  days ; 
Licod  as  he 
he  was  go- 
r's  day. 

on  Christ- 
ore  I  heard 
(  carry  mu- 

;  I  under- 

of  conver- 
le  29th  De. 

led  on  this 

nel  Duncan 

tion,  which 
a  case  in 
jgatory ;  in 
vious  inter- 
ided'that  a 
ralory,  if  it 
The  ob- 
atory  intro- 
it  might  be 
vious  inter- 

and  Center 
Cameron  is 
lere  ;  it  so 
for  him  to 
thing  in  the 
It  the  Caro- 
ruth  will  be 
reasons.  I 
lim,  and  yet 
isappointed, 


and  I  may  as  well  state  it  now.  I  confess  I  did  expect  the  prosecution  of 
this  case,  of  ail  others,  would  have  been  conducted  in  a  high  and  lofty 
manner,  despising  technicalities,  and  aiming  only  at  the  truth.  I  did  not 
expect  to  see  that  a  man  was  to  have  his  life  jeopardied,  and  his  country 
jeopardied,  by  little  technical  and  unworthy  objections,  and  I  confess  here, 
in  the  presence  of  this  audience,  that  I  am  mortified  at  the  mode  and  man- 
ner in  which  this  has  been  conducted  ;  I  had  not  anticipated  that  the  de- 
positions would  be  objected  to,  but  it  has  been  one  continued  struggle,  from 
the  beginning  to  the  end ;  and  now  there  is  one  which  I  wish  to  read — 
that  of  Colonel  Cameron,  as  to  this  single  point,  that  there  shall  be  no 
room  for  mistake — that  McLeod  was  not  at  Chippewa  when  the  Caroline 
was  burned ;  I  know  it  was  contradicted  by  one  man,  and  let  him  come 
forward  if  he  pleases,  and  swear  that  the  testimony  of  this  Morrison  family 
is  untrue  ;  I  knew  that  a  set  of  minions  and  strawhcels  were  to  contradict 
Mr.  Morrison ;  and  I  have  deemed  it  im|)ortant  that  the  testimony  of  this 
family  should  be  fortified ;  hence  Col.  Cameron's  deposition  was  taken, 
and  hence  Judge  McLean's  testimony  will  bo  introduced,  and  that  of  Mr. 
Gilkinson  in  corroboration  of  their  testimony.  And  now  we  meet  these 
objections.  I  had  anticipated  a  trial  that,  according  to  my  poor  notions 
of  law,  should  be  worthy  of  the  law-officer  of  the  State  of  New  York,  and 
to  which  no  objections  would  be  taken  in  England;  and  that  no  objections 
would  be  taken  that  would,  in  any  respect,  tend  to  the  exclusion  of  truth 
—that  the  doors  would  be  thrown  wide  open,  and  every  thing  to  show 
where  the  truth  is,  be  brought  forward.  I  have  not  met  that  mode  of  con- 
ducting the  trial,  and  I  am  mortified  and  deeply  disappointed  in  it. 

The  Attorney-General. — I  have  but  a  short  answer  to  make.  If  the 
gentleman  had  supposed  that  I  was  capable  from  any  ulterior  considera. 
tions  of  overlooking  truth,  or  winking  at  falsehood,  of  closing  my  eyes  by 
any  considerations  external  of  justice,  he  mistakes  mo.  That  he  would 
do  so,  I  may  think  from  the  course  he  has  pursued.  I  will  not  say  I  am 
surprised  at  it ;  but,  as  far  as  my  own  course  is  concerned,  if  he  is  sur- 
prised at  my  overshooting  the  mark,  it  is  possible,  it  is  because  he  felt 
that  he  himself  was  capable  of  doing  so,  had  he  been  acting  under  similar 
circumstances.  With  reference  to  the  objections,  I  wish  to  present  this 
matter  that  it  may  be  understood  by  the  jury,  that  the  deposition  was  taken 
without  the  least  possible  understanding  in  what  manner  the  questions  were 
to  be  asked,  and  so  as  to  preclude  cross-questions. 

Judge  John  McLean  sworn — Resides  in  New  York  city ;  is  in  the  city 
of  Washington  during  more  than  half  the  year;  a*  few  days  previous  to 
the  burning  of  the  Caroline,  was  at  the  American  Motel,  in  Buffalo — there 
saw  McLeod  in  the  bar-room  ;  there  were  a  number  of  persons  present, 
and  a  conversation  ensued  in  relation  to  the  Canada  troubles ;  McLeod 
became  desirous  of  retreating  from  the  room  for  safety ;  witness  and 
another  assisted  him  to  do  so ;  the  night  of  the  burning  of  the  Caroline  he 
spent  in  the  quarters  of  Col.  McNab,  at  Chippewa ;  got  there  about  seven 
o'clock  in  the  evening;  did  not  see  McLeod  there ;  saw  him  next  moi||> 
ing  after  leaving  McNab's  quarters ;  he  left  there  about  ten  or  eleven 
o'clock  in  company  of  Dr.  Foote,  in  a  wagon ;  and  near  the  Pavilion 
Hotel  McLeod  passed  witness  on  horseback,  going  toward  the  camp. 

Cross-examined  by  the  Attorney-General. — Is  a  citizen  of  the  United 
States ;  went  down  there  at  the  request  of  the  Attorney  of  the  northern 
district  of  New  York  j  slept  in  the  military  quarters ;  had  an  interview 

26 


t  ; 


:(;■''  ! 


I'i   I 


2^ 


'M 


w '  iv.4 


202 


GOULD  S   REPORTER. 


of  upwards  of  an  hour"with  Col.  McNab ;  it  was  mostly  a  private  inter- 
view ;  on  his  arrival  went  to  a  Hotel ;  got  out  and  engaged  a  bed  for 
driver  and  stabling  for  the  horses  ;  then  inquired  for  McNab's  quarters  ; 
went  there  immediately ;  he  had  been  at  the  Canadian  camp  at  Waterloo, 
where  he  was  furnished  with  a  conveyance  ;  after  the  interview  with  Col. 
McNab  had  a  glass  of  wine  and  went  to  the  supper-room  ;  had  some  re- 
freshments there  ;  continued  there  for  about  two  hours  ;  there  were  about 
half  a  dozen  officers  there ;  Col.  McNab  left  soon  after  going  into  the 
supper-room,  saying  he  had  business  that  would  keep  him  out  all  night ; 
witness  then  went  to  his  lodgings  which  were  assigned  him  by  the  Colonel ; 
heard  of  the  destruction  of  the  Caroline  when  she  was  in  flames  going  over 
the  Rapids ;  was  awakened  by  a  man  rushing  in  and  calling  to  a  com- 
panion, saying,  "  Here's  a  splendid  sight ;  the  Caroline's  in  a  flame !" 
Did  not  himself  see  the  Caroline  ;  knew  it  was  an  American  vessel ;  Dr. 
Footc  heard  all  this ;  witness  wished  Dr.  Foote  to  get  up  ;  but  they  both 
resolved  not  to  get  up,  as  officers  would  be  there  who  might  make  un- 
pleasant remarks  for  them  to  hear  ;  there  was  not  much  disturbance  ;  saw 
McNab  next  day  ;  witness  rose  at  sunrise  ;  went  to  McNab's  quarters  ; 
wished  to  know  the  circumstances  attending  the  burning  of  the  Caroline  ; 
saw  him  ;  breakfasted  about  nine  o'clock  ;  then  started  for  the  Falls  ;  it 
was  then  about  ten  o'clock  ;  got  there  in  about  an  hour  ;  it  was  there  wit- 
ness saw  McLeod ;  he  was  then  near  the  Pavilion ;  would  not  swear  to 
the  particular  house  ;  thinks  he  would  not  be  safe  in  saying  it  was  before 
eleven  o'clock  ;  could  not  swear  positively ;  did  not  accost  McLeod  ;  the 
prisoner  was  on  horseback ;  witness  recognised  him ;  did  not  catch  his 
eye,  that  he  remembered  ;  have  taken  no  particular  interest  in  McLeod  ; 
mentioned  to  Mr.  Foote  that  he  saw  McLeod ;  he  said,  "  there  goes 
McLeod;"  nothing  more  was  said  then  of  that  subject;  I  sent  the  wagon 
back  with  the  boy,  Luke  Walker. 

Jasper  T.  Gilkinson  was  next  sworn,  and  deposed  that  he  has  lived  at 
Niagara  since  March,  1836 ;  knew  Raincock ;  he  left  before  the  troubles  ;  he 
did  not  go  in  any  notorious  way ;  he  went  in  September  or  October  ;  wit- 
ness was  of  the  force  at  Chippewa ;  a  volunteer ;  was  in  Chippewa  on  the 
29th  ;  lodged  about  half  a  mile  below  Stamford,  at  a  tavern  towards  Niag- 
ara ;  returned  to  Chippewa  the  next  morning  about  ten  o'clock ;  saw 
McLeod  ;  he  overtook  witness  and  a  person  who  accompanied  him ; 
McLeod  was  on  a  bay  horse  ;  it  was  between  Stamford  and  the  Pavilion  ; 
when  they  got  to  Chippewa,  rode  along  to  near  Capt.  Usher's  house ;  two 
guns  were  5red  from"  Navy  Island  at  the  party ;  witness  suggested  the 
propriety  of  returning  ;  in  returning,  the  lower  battery  was  discharged  at 
us  ;  one  shot  entered  the  bank  of  the  river ;  a  soldier  of  the  24th  picked 
up  the  ball  and  gave  it  to  McLeod ;  he  took  it  home. 

Cross-examined  by  Attorney-General. — Went  up  to  the  end  of  Navy 
Island ;  the  upper  end ;  it  was  about  ten  o'clock  when  he  came  up  with 
McLeod  ;  the  roads  were  bad  ;  they  might  have  been  absent  from  Chip- 
pewa three-quarters  to  one  hour ;  it  was  an  every  day  custom  of  his  to  go 
to  Chippewa. 

The  Court  then  adjourned. 


Mcleod's  trial. 


203 


ate  inter- 
a  bed  for 
quarters ; 
Waterloo, 
with  Col. 

some  re- 
vere about 
T  into  the 
all  night ; 
3  Colonel ; 
Toing  over 
to  a  com- 
a  flame!" 
jssel ;  Dr. 

they  both 

make  un- 
ance ;  saw 
1  quarters  ; 

Caroline ; 
c  Falls ;  it 
i  there  wit- 
t  swear  to 
was  before 
;Leod ;  the 
t  catch  his 
1  McLeod ; 
there  goes 

the  wagon 

as  lived  at 
roubles ;  he 
;ober  ;  wit- 
cwa  on  the 
^rards  Niag- 
jlock ;  saw 
mied  him; 
e  Pavilion ; 
louse ;  two 
Tgested  the 
icharged  at 
;4th  picked 

of  Navy 
Inrie  up  with 
from  Chip- 
of  his  to  go 


SIXTH   DAY. 

The  Court  re-asscmbled  at  the  usual  hour. 

Mr.  Spencer  informed  the  Court,  that  he  had  many  witnesses  in 
attendance  that  he  intended  to  produce,  to  show  more  extensively 
the  nature  of  the  transaction  out  of  which  this  trial  had  arisen.  He 
now  wished  the  Court  to  understand  that  the  evidence  was  odered, 
though  under  the  rule  laid  down,  it  was  excluded. 

Jared  Stockings  brother  of  Mr.  Samuel  Stocking  of  Utica,  was  then 
called  and  examined  :  Resides  at  Niagara,  was  a  Captain,  and  had 
command  of  a  detachment  of  Dragoons,  at  Chippewa,  during  the  out- 
break. He  was  there  in  December,  1837,  knows  William  Press  well. 
Press  resided  nearly  opposite  to  him  at  Niagara.  He  was  not  related 
to  witness.  Witness  saw  Press  at  Chippewa,  on  the  29th  December, 
and  spent  most  of  the  afternoon  with  him.  He  said  it  was  his  first 
appearance  there,  and  desired  witness  to  show  him  the  batteries. 
Press  dined  with  witness.  Witness  also  knew  Mr.  Raincock  well. 
He  was  a  custom-house  officer  at  Niagara.  Witness  thinks  Raincock 
left  the  country  in  the  summer,  or  in  Septem.ber.  Witness  was  his 
creditor  to  a  small  amount,  which  Raincock  could  not  pay  when  he 
went  away. 

Cross-examined  by  the  Attorney  General.  —  Witness  went  to 
Niagara,  immediately  after  the  close  of  the  late  war  with  England, 
1815,  and  has  resided  there  ever  since.  He  is  a  native  of  the  United 
States — went  to  Chippewa'  a  few  days  after  the  occupation  of  Navy 
Island  :  was  in  service  about  five  months — at  Chippewa  two  months, 
at  the  Falls  or  Drummondville,  nearly  three  months.  Supposes  there 
were  troops  to  the  number  of  four  or  five  thousand — the  Assistant 
Commissary  having  informed  him,  that  he  dealt  out  about  five  thou- 
sand rations  daily.  They  felt  themselves  very  safe  with  so  many 
troops.  Witness  did  not  think  of  being  subpa?naed  here  ;  but  was  on 
his  return  from  Montreal.  Witness  thinks  it  was  three  weeks  after 
the  destruction  of  the  Caroline,  when  the  evacuation  of  the  island 
took  place. 

Witness  believes  that  a  military  party  were  sent  over  to  the  island 
after  the  evacuation,  but  he  did  not  understand  it  was  to  take  pos- 
session of  the  island.  A  fatigue  party  went  over,  with  a  view  of  cut- 
ting down  the  timber,  which  had  previously,  in  some  measure, 
obstructed  the  sight  of  the  fortifications,  so  that,  if  they  should  return 
to  the  island,  their  movements  could  be  better  seen.  Insurgents 
evacuated  the  island  about  the  middle  of  January.  After  the  evacua- 
tion witness  went  to  the  island. 

Witness  was  never  examined  or  (juestioned  on  this  subject  before, 
or  until  since  he  came  to  Utica.  What  refreshed  his  memory  was, 
that  when  it  was  learned  McLeod  was  arrested.  Press  showed  him 
the  book  in  which  he  had  made  the  entry.  That  was  the  first  time 
it  was  ever  mentioned,  which  was  about  three  years  afterwards.  Re- 
collects hearing  Press  say,  when  told  that  McLeod  was  arrested,  'Good 
God,  it  cannot  be,  for  he  came  from  Chippewa  with  me  that  night.' 
After  Press  came  to  witness'  quarters  at  Chippewa,  he  wished  him  to 
walk  up  with  him  to  see  the  batteries.  Witness  did  so,  and  the 
Caroline  was  making  her  first  trip  to  Navy  Island. 


p. 

■   \ 


^t:;-,-. 

^M 


i 


fm 


I  in 


20i 


GOULD  S   REPORTER. 


Question  by  the  Attorney  General. — Are  you,  or  are  you  not 
aware,  Mr.  Stocking,  that  after  the  Caroline  was  destroyed,  another 
boat  came  down  1  Witness :  Yes,  Sir,  I  think  there  was  a  boat  there 
at  the  time  of  the  evacuation  of  the  island.  It  was  sent  down,  I 
think,    by  order  of  General  Scott. 

The  Attorney  General. — Do  you  know  that  it  was  the  Caroline 
which  you  saw  crossing  to  Navy  Island  1 

Witness. — I  knew,  or  I  supposed  I  knew  it  to  be  the  Caroline.  I 
saw  it  go  twice  back  and  forth  to  the  Island  on  the  29th,  and  that 
was  the  only  boat  that  I  saw.  Mr.  Press  was  with  me  at  the  time. 
Witness  usually  dined  at  about  2  o'clock.  It  was  after  dinner  they 
walked  up  the  river,  and  they  may  have  been  up  there  two  or  three 
hours.  Witness  was  with  Press  both  before  dinner  and  after  return- 
ing from  the  walk.  The  boat  was  easily  perceived  from  where  they 
were.  Men  were  at  work  at  the  time,  erecting  the  batteries  with 
large  timber  which  had  been  got  out  to  ship  to  England.  The  Island 
was  within  rifle  shot.  The  boat  was  a  small  one  from  appearance  ; 
it  appeared  to  be  one  of  the  smallest  class.  The  battery  was  eigh- 
teen or  twenty  feet  in  length.  One  battery  was  completed  and  a  gun 
mounted.  There  were  three  batteries.  One  which  was  in  progress 
of  building  was  nearly  opposite  the  head  of  Navy  Island.  There  was 
one  at  the  end  of  the  island  and  one  nearly  at  the  centre.  It  was 
three  or  four  days,  and  perhaps  a  week  after  the  evacuation  that 
witness  went  to  the  Island.  Although  he  did  not  recollect  the  day 
of  the  evacuation,  yet  he  recollected  distinctly  the  day  when  Mr. 
Press  dined  with  him. 

Question  by  the  Attobney  General. — How  is  it  that  you  cannot 
recollect  within  a  day,  or  week,  or  fortnight  of  the  time  of  the 
evacuation,  when  you  recollect  so  distinctly  the  day  that  Mr.  Press 
dined  with  you  1 

Witness. — From  the  circumstance  of  Press  dining  with  me,  of 
our  walking  up  the  river  togethei',  and  of  seeing  the  Caroline  cross- 
ing to  and  fro,  and  the  burning  oi  the  boat  on  that  night — all  these 
things  helped  to  confirm  me  as  to  the  time. 

Witness  found  on  the  Island  nothing  more  than  the  appearance  that 
there  had  been  soldiers  there.  There  was  a  log  building  standing 
which  he  was  told  had  been  their  head-quarters. 

Witness  saw  upon  the  island  the  remains  of  some  buildings  put  up 
with  rails  or  logs,  and  covered  with  brush.  They  were  small,  from 
ten  to  eighteen  feet,  and  three  in  number.  Besides  these  there  was 
the  old  log  building  previously  occupied  for  a  dwelling.  They  found 
no  person  on  the  Island.  Witness  saw  McLeod  that  day  ;  thinks  it 
was  near  Davis's  tavern.  Did  not  see  him  after  that.  He  was  not  in 
the  military  business,  and  do  not  recollect  seeing  him  again.  Wit- 
ness belonged  to  a  troop  of  dragoons,  and  did  his  duty  as  a  militia  man. 
His  quarters  were  down  at  the  Chippewa  creek.  Had  never  interfer- 
ed much  with  the  politics  of  the  country. 

By  Mr.  Jenkins. — There  was  about  two-thirds  of  the  way  up  the 
Island  the  remains  of  a  battery  which  appeared  to  be  Very  well  con- 
structed. The  engineer  must  have  understood  his  business.  There 
were  batteries  in  the  course  of  construction  on  the  main  shore  when 


MCLEOD  S   TRIAL. 


205 


witness  went  up  with  Mr.  Press.  Knows  that  the  upper  battery  was 
there,  for  they  could  see  people  movinjr  about  it.  They  could  be 
plainly  seen  at  work.  There  were,  witness  thinks,  but  two  bntteric 
upon  the  Canada  shore,  neither  of  which  was  erected  behind  a  house. 
The  corps  to  which  witness  belonged  had  been  organized  about 
ten  years. 

By  Mr.  Spencer. — Col.  McNab's  quarters  were  a  short  distance 
from  Davis's  tavern — eight  or  ten  rods.  I  received  a  note  about  six 
or  7  o'clock  on  the  evening  of  the  29th  from  Col.  McNab,  desiring  me 
to  give  to  an  orderly  that  he  sent  as  many  arms  as  we  could  spare. 

Mr.  Spencer  then  rose  and  said,  this  Court  having  felt  it  its  duty 
to  exclude  the  evidence  which  we  proposed  offering  at  the  com- 
mencement of  the  trial,  founded  on  national  law,  it,  of  course,  leaves 
but  a  single  question  of  fact  to  be  investigated  in  this  trial ;  and  that 
is,  whether  in  truth  McLeod  was  one  of  the  party  who  attacked  and 
destroyed  the  Caroline.  To  this  point,  therefore,  we  have  directed 
our  attention,  and  produced  all  the  evidence  in  our  power  to  bear  on 
it ;  and  therefore  close  the  defence  on^  which  we  shall  rely  for  the 
acquittal  of  McLeod. 

REPLY  TO  THE  DEFENCE. 

The  Attorney  General  said,  before  Ave  call  witnesses  I  will  offer 
some  documentary  evidence.  I  offer  first  the  enrollment  and  then 
the  license  of  the  boat  in  Buffalo. 

Mr.  Spencer. — Let  it  be  read,  sir. 

The  Attorney  General. — It  is  not  necessary,  unless  you  dispute 
it.  The  enrolment  is  dated  the  1st  of  December,  1837.  The  license 
bears  the  same  date. 

I  will  now,  also,  if  the  Court  please,  read  the  statement  of  the 
prisoner. 

Mr.  Spencer. — At  what  time  and  place  made  ? 

The  Attorney  General. — Before  Justice  Bell. 

Judge  Gridley. — I  think  evidence  cumulative  is  not  strictly  ad- 
missible. 

Attorney  General. — It  is  the  statement  of  the  prisoner,  made  be- 
fore Mr.  Justice  Bell,  when  he  was  informed  of  his  rights. 

Judge  Gridley. — Is  it  properly  authenticated  1 

Attorney  General. — Yes,  sir. 

Mr.  Jenkins. — And  it  conflicts  with  the  statement  of  some  of  the 
prisoner's  witnesses. 

The  Attorney  Generak  here  proceeded  to  read  the  statement  of 
Alexander  McLeod,  taken  before  Justice  Bell,  which  is  as  follows : 

Alexander  McLeod  states  that  the  evening  of  the  night  previous 
to  the  attack  of  the  Caroline  he  was  informed  she  had  left  Buffalo 
for  the  service  of  the  Navy  Island  people.  Was  one  of  ten  persons 
who  went  in  a  boat  with  Captain  Graham  on  the  morning  oi  the 
28th  December.  Went  round  Navy  Island  to  look  out  for  the 
Caroline.  Did  not  see  her  and  returned  about  8  o'clock  to  Chippe- 
wa. About  3  o'clock  that  afternoon  went  to  bed  at  Mr.  Davis's. 
Got  up  about  7  o'clock  or  half-past.  Came  to  Mr.  Davis  and  told 
him  to  tell  the  hostler  to  get  his  horse.    The  stable  keeper  brought 


?  If 


206 


Gould's  reporter. 


the  horse  to  the  door.  I  mounted  him  and  went  to  Stanford,  five  or 
six  miles  from  Chippewa,  in  company  with  Mr.  Press,  ii  tavern  keep- 
er of  Niagara.  Went  to  Captain  Morrison's,  tiuve  the  horse  to  his 
son,  eat  supper  and  went  to  bed  about  11  o'clock.  Next  mornirifr  w'as 
dressing,  when  Capt.  Morrison  came  in  and  told  me  that  Col.  Came- 
ron had  just  come  from  l/hippewaand  told  him  that  they  had  burned 
a  steamboat  that  morning  or  the  evening  before.  Remarked  to 
Capt.  Morrison  that  it  must  be  the  Caroline,  as  the  was  expected 
down.  Eat  breakfast  between  eight  and  nine  o'clock,  and  immedi- 
ately after  got  upon  horseback  and  went  to  Chippewa.  I  met  with 
James  M.  Dyke  between  Stamford  and  the  falls,  who  informed  me 
of  the  particulars.  Was  in  the  Pavilion  a  few  minutes,  and,  arrived 
at  Chippewa  between  nine  and  10  o'clock,  A.  M. 

ALEXANDER  McLEOD. 
Taken  the  day  and  year  last  above  written,  before  me, 

Jonathan  Bell,  Justice  of  the  Peace. 

The  Attorney  Gknf.ral  then  read  the  following : 

John  Whitford  .Morrison,  a  witness  on  the  part  of  the  said  Alex- 
ander McLeod,  on  his  oath  before  me,  the  said  Justice,  in  the  pres- 
ence and  hearing  of  the  said  Alexander  McLeod,  saith  : — that  ho  re- 
sides at  Stamford,  Niagara  District ;  resided  there  since  1836 — Col. 
Cameron  first  informed  witness  of  the  burning  of  the  Caroline,  at 
witness's  gate,  from  8  to  10  o'clock,  he  thinks,  it  was  before  11  o'clock. 
The  front  gate  of  witness  is  on  the  road  leading  from  Stamford  to 
the  Falls  of  Niagara.  Remembers  that  between  7  and  9  o'clock  on 
the  evening  previous  to  the  burning  of  the  Caroline,  McLeod,  the 
prisoner,  came  to  witness's  house ;  next  morning  about  7  o'clock  he 
saw  Mr.  McLeod  lying  upon  the  stretcher.  Went  to  the  gate  and 
saw  Col.  Cameron,  who  informed  witness  of  the  destruction  of  the 
Caroline.  Thinks  it  was  near  10  o'clock  when  he  informed  prisoner 
of  the  destruction  of  the  Caroline.  Prisoner  Avent  to  Chippewa,  as 
witness  believes.  W^itness  is  a  retired  officer  of  the  British  army 
on  full  pay.  Witness  knows  prisoner  was  at  his  house  at  the  usual 
time  of  going  to  bed,  say  from  10  to  12  o'clock,  but  witness  does 
not  recollect  the  exact  hour  that  prisoner  went  to  bed. 

Cross-examined. — Went  to  Chippewa  next  morning,  thinks  it  was 
about  11  o'clock  when  witness  started.  Prisoner  went  first.  Thinks 
it  was  about  8  o'clock  when  defendant  eat  breakfast.  Witness  saw 
Mr.  McLeod's  horse  in  the  stable  about  9  o'clock  in  the  evening. 
Saw  the  horse  again  in  the  morning  somewhere  from  8  to  10  o'clock 
in  the  morning.  Thiiiks  Mr.  McLeod  was  walking  in  front  of 
the  house  when  witness  informed  him  of  the  destruction  of  the 
Caroline.  Witness  knew  of  his  going  to  bed.  Defendant  might 
have  got  up  and  gone  out  of  the  house  without  witness's  knowledge. 
Witness  has  never  stated  to  any  person  that  Mr.  McLeod  was  not  at 
his  house  on  the  evening  in  question,  or  that  he  did  not  know  wheth- 
er he  was  there  or  not.  Has  not  told  any  person  witness  did  not 
know  whether  Mr.  McLeod  was  there  or  not.  Thinks  he  has  had  no 
conversation  with  McLeod  on  this  fact  or  subject.  Has  told  Mr. 
McLeod  of  his  being  charged  with  being  there,  and  laughed  about  it 


itness  saw 


Mcleod's  trial. 


207 


Witness  had  not  heard  previously  tlmt  there  was  a  steamboat  com- 
ing down.  Thinks  it  was  dark  when  McLeod  came  to  his  house. 
Did  not  sec  the  liorse  wiicn  he  came,  but  saw  him  afterwards.  De- 
fendant generally  kept  his  horses  in  witness's  stable.  Thinks  the 
horse  was  a  large  bay  horse  :  thinks  he  had  a  spot  in  the  forehead. 
Thinks  his  son  is  about  It  years  old.  Has  seen  Wm.  Defield  and 
does  not  recollect  having  said  any  thing  on  the  subject. 

Was  examined  by  defendant.  Witness  has  a  family  of  8  or  10 
persons,  who  also  saw  defendant  on  the  same  night  as  before  stated 
by  witness. 

J.  W.  MORRISON,  Lt.  late  9th  Regiment. 

Jlrchibald  Morrison^  a  witness  on  the  part  of  said  Alexander  Mc- 
Leod, on  his  oath,  before  me,  the  said  Justice,  in  the  presence  and 
hearing  of  the  said  Alexander  McLeod,  saith  that  he  lives  in  Stan- 
ford with  his  father.  Recollects  hearing  of  the  burning  of  the  Caro- 
line next  day.  Defendant  came  to  the  house  after  dark,  does  not 
know  the  hour.  Witness  took  defendant's  horse  and  put  him  in  the 
stable  and  fed  him.  Saw  prisoner  at  supper  that  night.  Saw  defen- 
dant at  the  house  the  next  morning.  That  morning  two  gentlemen 
called  at  the  gate,  one  of  whom  was  Col.  Cameron,  witness  informed 
his  father  who  went  to  the  gate ;  witness  went  with  his  father  to  the 
gate.  Does  not  recollect  where  defendant  was  then.  Thinks  it  was 
10  or  11  o'clock  when  witness  brought  the  horse  for  defendant. 
Witness  recollects  that  defendant  breakfasted  there  that  morning 
Witness's  mother  and  sisters  were  present  at  breakfast  that  morning. 

Cross-examined. — Witness  is  about  14  years  old.  Thinks  the  cir- 
cumstances now  related  occured  last  summer.  Mr.  McLeod  was 
frequently  at  the  house  to  spend  the  night.  Recollects  this  particu- 
lar time  in  consequence  of  the  burning  of  the  Caroline.  Witness  saw 
defendant  about  8  o'clock  in  the  room.  Thinks  he  was  there  about 
a  week  before,  does  not  recollect  the  precise  hour,  thinks  he  did  not 
take  supper  or  stay  all  night.  Was  there  again  the  same  day,  but 
did  not  stay  all  night.  Was  there  two  or  three  days  after.  Defen- 
dant occasionally  when  he  came  late  at  night  would  stay  all 
night,  frequently  took  supper.  Witness  thinks  he  was  then  about 
13  years  of  age.  Is  not  certain  that  this  was  last  year.  Does  not 
recollect  whether  his  father  went  to  Chippewa  that  morning  or  not. 

Examined  by  defendant. — Defendant  has  noi  been  in  the  habit  of 
going  to  his  father's  house  since  last  winter. 

In  chief. — Witness  knew  Col.  Cameron  when  he  saw  him. 

ARCHIBALD  MORRISON. 
Taken  and  acknowledged  before  me  the  day  and  year  last  above 
written.  Jonathan  Bell,  Justice  of  the  Peace. 

William  Defield,  a  witness  on  the  part  of  the  prosecution  on  his 
oath  before  me,  the  said  justice,  in  the  presence  and  hearing  of  the 
said  Alexander  McLeod,  saith  he  knows  Captain  Morrison.  Never 
conversed  with  Captain  Morfison  on  the  subject  of  the  burning  of 
the  steamboat  Caroline  until  last  evening.  Captain  Morrison  inform- 
ed witness  then,  that  he  could  not  testify  positively  as  to  Mr.  Mc  • 


,>        !•'> 


ra: 


,4 


■    ,  ■  '1" 


:), 


ill:  J' 


SOS 


GOULD  8   REPOHTER. 


I 


Leod  bcinfj  at  his  hoiiso  the  night  the  Cnroline  was  burned,  but  he 
was  there  fref{iiently.  This  was  stated  in  the  presence  of  a  third 
person  whom  witness  tiiinks  was  Mr.  Handy. 

Cross-exiiiniiied. — Docs  not  know  where  Mr.  Handy  is.  Witness 
resides  in  Qncenston.  Is  nn  intimate  acquaintance  of  Captain  Mor- 
rison. Was  at  Qneenston  at  the  time  the  Caroline  was  burned.  De- 
fendant itiquired  where  Mr.  Defield  resided  during  the  winter  after 
the  burning  of  the  Caroline,  which  question  he  declined  answering. 

WM.  W.  DEFIELD. 
Taken  and  acknowledged  before  me  the   day  and  year  last  above 
written. 

Jonathan  Bei.l,  Justice  of  the  Pence. 

Frederic  Tench,  a  witness  on  the  part  of  the  said  Alexander  Mc- 
Leod,  on  his  oath  before  me,  the  said  Justice,  in  the  presence  and 
hearing  of  tiie  said  Alexander  McLeod,  saith  that  he  resides  in  the 
vicinity  of  Queenston.  Has  known  Captain  Morrison  several  years. 
His  reputation  is  that  of  a  very  honorable  man.  Witness  having 
previously  sent  a  letter  to  Captain  Morrison  requesting  his  presence 
at  this  examination.  Yesterday  afternoon  went  to  Captain  Morri- 
son's house.  Captain  Morrison  came  over  with  witness  after  his 
arrival  at  this  house.  Captain  Morrison  appeared  to  be  excited  con- 
siderably from  drinking.  Saw  him  and  Mr.  Defield  together.  Took 
Captain  Morrison  away  into  the  other  room. 

Cross-examined. — Did  not  hear  Mr.  Defield  say  any  thing  to  Cap- 
tain Morrison.  Saw  them  going  to  the  window,  Mr.  Defield  in  the 
advance. 

FREDERIC  TENCH. 
Taken  and  acknowledged  before  me  the  day  and  year  last  above 
written. 

Jonathan  Bell,  Justice  of  the  Peace. 

Henry  Phelps,  a  witness  on  the  part  of  the  prosecution  on  his  oath 
before  me,  the  said  Justice,  in  the  presence  and  hearing  of  the  said 
Alexander  McLeod,  saith  that  he  lives  at  the  Center  House  in  this 
village.  Lived  at  Chippewa  in  the  fall  and  winter  of  1837.  Lived 
there  at  the  time  of  the  burning  of  the  Caroline.  .  Saw  the  boat  burn- 
ing. Knows  the  defendant  and  has  known  him  3  or  4  years.  Saw 
him  the  evening  of  the  burning  between  6  and  8  o'clock  in  the  eve- 
ning, saw  him  again  just  before  daylight  or  betwixt  daylight  and  sun- 
rise. Thinks  he  could  not  have  been  mistaken  in  the  man  as  he 
knows  him  well. 

Cross-examined. — Saw  the  defendant  first  coming  across  the  bridge 
on  horse  back.  Witness  was  30  or  40  rods  off.  There  were  a  num- 
ber of  persons  coming  along  across  the  bridge.  Witness  boarded  at 
Mr.  Smith's.  The  bridge  is  over  a  small  creek.  Witness  lifted  up 
the  window  at  Smith's.  Had  been  playing  cards  with  Anson.  Saw 
from  Smith's  window  the  defendant  and  other  people  crossing  the 
bridge.  Was  up  all  night.  Had  been  drinking,  but  could  see  well. 
Anson  was  teaming  for  Mr.  Smith.  Witness  saw  defendant  at  Mr. 
Davis's  stable  in  the  evening  between  6  and  9  o'clock  in  the  evening. 


!!li 


MCLEOU  S    TKIAL. 


209 


Defendant  came  about  dusk  witli  liis  hor.^p,  had  hiia  put  up  and  fod, 
and  between  tl  and  !)  o'clock  be  went  away  on  Iwtr.se  back  again. 
Did  not  stie  the  boats  return  from  the  biirnlii;;  of  the  Can»line.  but 
heard  the  people  going  np  .stairs  at  Davis's.  Thinks  defendant  i»  not 
much  altered.  Tiiiidis  his  whiskers  were  then  shaved  ofl',  thinks  lie 
was  lighter  then  than  now,  has  never  told  this  story  before.  Witness 
told  MT.  Robinson  that  he  knew  Mr.  MeLcod,  and  told  him  if  witness 
was  wanted  as  a  witness  he  would  come.  lias  never  heard  defen- 
dant say  that  he  was  at  the  burning  of  the  Caroline,  but  has  lieurd 
otlier  persons  at  Chippewa  say  so. 

HENRY  PHELPS. 
Taken  and  acknowledged  before  me  the  day  and  year  last  above 
written. 

Jonathan  Bki.i,,  Justice  of  the  Peace. 

Attornfa'  Gknekal. — These  examinations  were  had  on  the  Ikli 
of  November,  1810,  before  Jonathan  Bell,  at  Lewiston,  State  of  Neu 
York.  I  will  now  read  the  examination  before  M.  T.  Bowen  upon 
the  habcaa  corpus.  The  date  of  the  writ,  li)th  of  November,  the  ex- 
amination, December  12,  1810. 

.'llcxamkr  McLcod  on  being  examined  by  the  District  Attorney, 
not  on  oath,  says  that  on  the  Christmas-eve  before  the  Caroline  was 
burned  he  was  at  Bull'alo,  and  there  learned  that  the  steamboat  Caro- 
line was  then  preparing  to  enter  into  the  Navy  Island  service,  antl 
that  she  was  then  lying  at  or  near  the  mouth  of  Buffalo  creek ;  that 
he  (defendant)  the  next  day  went  from  Bulfalo  to  Chippewa,  Upper 
Canada,  and  there  gave  information  that  the  Caroline  was  fitting  out 
for  the  Navy  Island  service,  and  on  the  next  day,  which  was  Tues- 
day, made  affidavit  to  it ;  and  on  the  night  previous  to  the  burning 
of  the  Caroline,  defendant,  on  his  way  to  Niagara,  stopped  at  the 
Pavilion,  Niagara  Falls,  and  there  learned  that  the  Caroline  cither 
had  left,  or  was  about  to  leave  BufTalo,  to  come  down  to  Navy  Island  ; 
and  then  defendant  returned  to  Chippewa  and  called  on  Col.  McNab 
and  informed  him  of  the  fact,  and  McNab  said  he  could  not  a<;t  upon 
the  fact  that  the  Caroline  had  merely  come  down,  and  could  do  noth- 
ing. Defendant  and  Captain  Philip  Graham  then  got  a  boat  between 
five  and  six  o'clock,  either  on  Thursday  or  Friday  morning,  and  got 
eight  sailors  and  went  round  the  Island.  They  passed  between 
Grand  and  Navy  Islands  about  daylight,  when  they  commenced  firing 
upon  them  from  Navy  Island,  and  two  musket  shots  were  fired  upon 
them  from  Grand  Island.  They  got  back  to  Chippewa  about  eight 
o'clock,  and  defendant  remained  at  Chippewa  all  that  day.  Defend- 
ant went  round  the  island  to  see  if  the  Caroline  had  come  down,  but 
did  not  discover  her  ;  but  about  two  o'clock  in  the  afternoon  defend- 
ant saw  her  passing  from  Schlosser  to  the  Island.  Defendant  then 
returned  to  John  C.  Davis's  tavern,  at  Chippewa,  and  being  rathei' 
unwell,  went  to  bed  about  three  o'clock  in  the  afternooij,  and  got  uj» 
again  about  seven  o'clock,  or  a  little  before,  intending  to  go  to  Nia- 
gara, and  directed  Davis  to  get  his  (defendant's)  horse.  Defendant 
got  his  horse   and  started   away   with  a  Mr.  Press,  in  his  (Press's) 

27' 


''\i 


mfl 


210 


nOVlU 8    UKPORTKn. 


'^m^RB^^ui 

1 

,Wm 

1 

v|H| 

li 

wnc^on,  (IcftMidnnt  Ifmdiiia:  liishorHp  ;  aiid  when  they  nrrived  at  Stan 
ford,  about  live  miles  from  (.'liipp«!\va,  dcfoiidant  ciillod   in  at  Cajitain 
Morrison's,  nn  uc(|iiaiiiianco  of  defendant,  and    Morrison  asked    him 
(<Iefeti(hint)  to  have   his  horse  put  np  and    stay  all  ni^hf,  and  he  ar- 
eordinj^ly  did  so.     lie  nrrived    at  Captain    Morrison's    honse  ahoM 
eijrht  oVlock,  I'.  M.,  or  n  little  after.     Defendant  wont   to   bed  about 
eleven  o'eloek  and  arose  about  half  past  s(>ven  o'eloek  next  niMrninj  ; 
and  at  between  eii^ht  and   nine  Captain  Morrison  eanie  to   defendai' 
in  the  parlor  where  he  (defendant)  had  slept.     Defendant  then  stand- 
ini^  in  the  door  of  the  room,  and  AfcM'i'ison  said  :  '•They  have  burned 
an  America:!  steamboat  last  ni<j[ht."     That  defendant  saiil:  '"It  inn.-t 
be  the  Caroline;"  and   Morrison  said,   "Here  is  u   piece  of  her   iha'. 
went  over  the    l-'alls."'     After  that,  defendant   j^oi    his  breakfast,  then 
;jf(»t  his    horse  and    went   do\vr»   to  Chippewa,  and    ^^ot  to   Chip|)e\\.i 
ii  little  after  ten  o'clock  in  the  niorniiiir  ;  that  he  did  not  j^o  into  Dii- 
vis's  tr.vern  at  all  that  day  ;  that  he  went  into  Chippewa  with  Jasper 
(lilkinson  and  Captain  Sparkc  ;  that  about   eleven  o'clock  lie  went  tn 
MiuN'ab's  quarters,  and  found  the  olficers  at  lunch,  and  there  saw  the 
boy,  f^uke  Walker,  who  has  been  examined  ;  that  on  the  -Monday  af- 
ter the  i)'irnin;,'  of  the  ('aroline  he  went  to  Toronlo,  and  on  the  next 
day  he  (defendant)  went  to  Thorn  Hill,  about  foiuiteen    miles  froi.i 
Toronto,  ami  returned  to  T'oronto  between  four  and  live  o'clock   that 
eveniiiir,     The  morning  after  the  burnitig  of  the  Caroline  he  was  not 
at  Chippewa  before  some  time  after  ten  o'clock  in  the  mornincr.    Nn 
person  slept  in  the  room   with  him  at  Morrison's   on  tlie  night    thai 
the   Caroline   was   burned.     There   are  eight  or  nine,  and   probably 
)nore  individuals  in  .Alorrison's  family.     He  does  not  know  who  were 
engaged  in  the  burning  of  the  Caroline,  except  by  report.     Knows 
.lames  McLem,  a  merchant  at  Chippewa,  and  Oliver  McLem,  also  a 
merchant.     Has  been  in  James  McLem's  store  frequently,  but  can't 
say  whether  he  was  there  the   day  before  the  Caroline  was  burned, 
but  thinks  not.     He  never  was  in  Oliver  McLem's  store.     Was  not 
in   McLem's  ptore  the  day  before  the  Caroline  was  burned,  when 
some  one  was  ordered  out  of  the  store,  and  the  doors  were  locked. 
If  he  was  there   that   day,  the  doors   were  not  locked — if  they  had 
been  locked,  he  should  have  remembered  it.     He  don't  think  that  any 
of  the  persons  who  were  actually  engaged  in  the  b.urning  of  the  Ca- 
roline now  reside  in  Chif  pewa.     Captain  Drew  now  resides  in  Eng- 
land.    He  believes  that  i   number  of  the  men  who  started  in  boats  to 
go  and  burn  the  Caroline  reside  within  forty  miles  of  Lockport,  but 
he  has  no  knowledge  or^ii-*  fact  except  from  information. 

That  he  never  told  any  person  that  he  was  engaged  in  the  burning 
of  the  Caroline,  nor  did  he  ever  present  a  pistol  to  any  one  with 
blood  on  it,  saying  that  the  blood  was  that  of  a  Yankee,  or  anything 
to  that  eflfect.  Shortly  after  the  burning  of  the  Caroline  there  was 
an  article  published  in  a  newspaper,  stating  that  the  defendant  was 
engaged  in  the  transaction,  and  defendant  at  once  denied  it  orally, 
and  published  an  article  in  a  public  paper,  in  which  he  specifically 
denied  it.  Before .  defendant  went  to  Buffalo  at  the  time  above 
spoken  of,  the   Governor  of  Upper  Canada  expressed  a  wish  that 


some  or 

llie  wis 
limo,  sli 
-d.     Tl 
|s;J7;  tl 
l»ri>ken 
well  sim 
lew  nion 


Subset 
tlii^ 


The  A 

Morrison 


Marga 

being  by 

vue  cotta 

lain  Mori 

place,  wh 

ing  of  the 

heard  her 

small  pari 

Caroline  \ 

tween  sev 

she  thinks 

eight  and 

he  came  t 

night,  unti 

put  at  the 

where  the 

lire  and  w 

door  open 

recollect. 

was  a  thin 

McLeod  £ 

kitchen  ; 

the  kitche 

in  the  sam 

were  in  th 

close  to  w 

room  door 

kept,  to  wi 

evening. 

witness's  1 

Member  of 

remained  { 

was  burnec 


MCLEOD  S   TRIALi 


211 


I.  "" 

•  Iff! 


some  one  hIjoiiM  po  to  HiiU'alo,  niid  (I<>f'eii<iatit,  in  compliaiire  wiili 
lilt'  wisli  iiiul  re'jiirst  of  tlic  (MHcrriur,  went.  H<'  has  m-vci,  at  any 
lime,  stated  ilmt  liu  was  at  .Niajr.ira  the  iiirtit  tliu  CurulffMi  war*  born- 
i.'(J.  That  he  (tlcrciidaril)  wa.n  ia  liiili'aU)  aboui  iho  I'ilh  of  |)pt'i'inber, 
|S.'{7  ;  that  since  lh(!  hiii'iiiii^  (if  the  ('ar(iliiit>  Hc  lins  had  his  ll,  rh 
l»rt»kiMi.  'This  hapiteiiud  the  vJ'id  of  April,  is;js,  and  he  lius  Imrdly  been 
well  since,  lie  has  had  the  a^jfiie,  and  recovoretl  from  that  only  a 
lew  iiioiiths  »>inco. 

AI.HX.WDICK  MtLKOl). 
Subscribed  by  said  defendiiiii,  Alexander  .Mclicod,  in  my  presi«nee, 
this  17th  ol  December,  INK). 

L.  F.  13()\vi;.\,  Jiidjjre,  Counsellor,  cVc. 

The  Attounkv  CiKNEIiai,   n(!Xt    read  the   depositions   of  AfariTuret 
Morrison,  and    Harriot    Morrison,  taken  before  .Indj^e    Howeii,    vi/ : 


■i 


• 


DEI'OSITON    OK    MARfiAUKT    .^lOIUUSON. 

.Mnrf^nrcl  .Morrison,  ti  witness  called  on  the  part  of  the  defendant, 
being  by  me  duly  sworn,  deposes  and  says,  that  she  resides  at  IJelle- 
vue  cottage,  near  Stanford,  Upper  Canada.  She  is  the  wife  of  Cap- 
tain Morrison.  In  the  latter  part  of  IS.'JT,  siie  resided  in  the  same 
place,  which  is  about  five  miles  from  Chi|)pcwa.  Kememhci's  hear- 
ing of  the  burning  of  the  Caroline.  The  lirst  she  heard  (»f  it,  she 
heard  her  husband  tell  defendant  of  it  in  his,  defendant's,  bed- rttoin,  n 
small  parlor  in  witness's  house.  This  was  the  morning  after  the 
(Caroline  was  burned.  Thiidcs  MeLeod  came  to  witness's  house  be- 
tween seven  and  eight  o'clock  the  evening  before.  He  totdc  tea,  and 
she  thinks  supper,  at  witnesses  house.  Thinks  that  it  was  between 
eight  and  nine  that  he  took  tea  or  supper.  It  was  some  time  after 
he  came  there.  Thinks  McLeod  set  up  with  witness's  husband  that 
night,  until  about  twelve  o'clock.  That  evening,  McLeod's  boots  were 
put  at  the  lire  to  dry,  and  witness  slept  within  foiiif  or  live  feet  of 
where  the  boots  were.  There  was  a  little  space  between  the  kitchen 
lire  and  witness's  bed-room — that  she  always  sleeps  with  the  kitchen 
door  open  j  thinks  she,  the  witness,  put  the  boots  there,  but  cannot 
recollect.  McLeod  was  not  in  the  kitchen  that  evening.  There 
was  a  thin  partition  between  witness's  bed-room  and  the  room  where 
McLeod  slept,  and  the  same  partition  between  the  parlor  and  the 
kitchen  ;  and  there  was  a  door  which  opened  out  of  the  parlor  into 
the  kitchen.  She  saw  those  boots  by  the  kitchen  lire  in  the  morning 
in  the  same  place  where  they  were  put  the  night  before,  and  they 
were  in  the  morning  entirely  dry.  The  key  to  the  stable  was  kept 
close  to  witness's  bed-room  door  ;  was  hung  up  a  little  over  the  bed- 
room door  in  the  kitchen.  McLeod  did  not  know  where  the  key  was 
kept,  to  witness's  knowledge.  McLeod  came  there  with  his  horse  that 
evening.  Col.  Cameron,  from  Toronto,  brought  the  intelligence  to 
witness's  house,  that  the  Caroline  was  burned,  and  a  Mr.  Cameron,  a 
Member  of  Parliament  was  with  Col.  Cameron  at  the  time.  McLeod 
remained  at  witness's  house  after  he  was  informed  that  the  Caroline 
was  burned,  until  after  breakfast ;    she,  witness,  was  getting  break 


h 


i  •^' 


1^' 


4i 


1.V 


'^f 


212 


GOULD  S    REPORTER. 


fast  at  the  time,  and  she  then  hurried  it  as  fast  as  possible.  McLeod 
left  witness's  house  between  nine  and  ten  o'clock  that  morniiifr,  and 
went  towards  Chippewa.  No  one  went  with  him  from  witness's 
house.  McLeod  was  not  away  from  witness's  house,  from  the  time 
he  came  there  that  evening,  until  he  went  away  the  next  morning,  td 
witness's  knowledge. 

M.  MORRISON. 
Subscribed  and  sworn  to,  this  17th  day  of  December,  1840,  before 
me, 

L.  F.  BowEN,  Judge,  Counsellor,  &c. 

The  said  witness,  Margaret  Mmrison^  on  being  cross-examined, 
deposes  and  says,  that  she  has  lived  at  Stanford  five  years,  and  has 
known  McLeod  about  the  same  time.  McLeod  lives  about  ten  or 
eleven  miles  from  witness's  house.  McLeod  came  to  witness's 
house  that  night  on  horseback.  Cannot  say  whether  he  came  there 
in  a  waggon  and  lead  his  horse.  McLeod  had  been  at  witness's  house 
before,  but  not  frequently — thinks  he  had  stayed  there  one  nigli! 
before,  which  was  Christmas  evening.  He  stayed  all  night  at  thni 
time,  and  left  there  the  morning  after  breakfast,  which  was  the  day 
after  Christmas.  He  spent  Christmas-day  at  witness's  house.  He 
came  to  witness's  house  in  the  evening  of  Christmas-day,  and  tin 
next  morning  she  understood  from  him  that  he  was  going  honn 
He  never  hud  stayed  at  witness's  house  over  night  at  any  other 
time,  nor  has  he  stayed  at  witness's  house  since  that  time,  but  has 
been  at  witness's  house  since.  She  can't  answer  whether  h^; 
daughter  is  the  wife  of  McLeod.  She  cannot  answer  that  \\i?' 
daughter  is  married  to  McLeod,  for  she  has  never  heard  anything 
of  the  kind.  Witness's  daughter  lives  with  McLeod.  Cannot 
answer  whether  they  live  together  as  man  and  wife.  Her  name  is 
Ellen  Norman  Morrison.  She  was  married  to  a  man  by  the  name  ol 
Taylor,  in  Buffalo,  and  left  him.  When  witness's  husband  informed 
McLeod  of  the  burning  of  the  Caroline,  McLeod  was  dressing  him- 
self in  the  parlor — ^this  was  before  breakfast.  She  is  sure  this  was 
the  morning  after  the  Caroline  was  burned.  Witness's  husband  is 
now  at  home,  or  she  left  him  at  home.  She  thinks  that  Mr.  Morri- 
son's second  son,  Archibald,  put  out  defendant's  horse  that  night. 
He  is  about  fourteen  years  old,  and  is  at  home.  Mr.  Morrison  wished 
McLeod  to  stay  at  their  house  that  night.  He  came  there  between 
seven  and  eight,  as  she  thinks,  in  the  evening.  Thinks  her  daughter 
was  married  to  Mr.  Taylor,  in  July,  1839. 

M.  MORRISON. 

Subscribed  and  sworn  to,  before  me,  this   19th  day  of  December. 
1840. 

L.  F.  BowEN,  Judge,  Counsellor,  &c 


DEPOSITION    OF    HARRIET    MORRISON.  * 

Harriet  Morrison,  a  witness  called,  on  the  part  of  the  defendant, 
being  duly  sworn,  tleposes  and  says,  that  she  is  the  daughter  of  Cap- 
tain Morrison.      She   remembers  the  time  when  the  Caroline  was 


Caroline  ^va^ 


MCLEOD'S    TRIAL. 


213 


burned.  The  first  she  heard  of  it,  she  heard  her  father  tell  McLeod 
iif  it.  This  was  the  same  morning  after  it  was  burned.  McLeod 
was  then  in  the  parlor  at  her  father's  house.  McLeod  came  to  her 
lather's  house  sometime  during  the  previous  evening.  McLeod 
that  night  slept  in  the  parlor.  McLeod  vvent  away  between  nine 
:iiid  ten  o'clock  in  the  morning.  Thinks  he  came  there  about  seven 
or  eight  o'clock  in  the  evening,  and  took  tea  there,  but  cannot  say 
u'hether  he  took  supper  there.  He  went  away  after  breakfast  in  the 
morning.  She  heard  her  mother  remark  the  next  moning,  that 
.McLeod  and  her  father  had  set  up  the  night  before  till  about  twelve 
if'clock.  Witness  left  the  room,  and  went  to  bed  between  nine  and 
len  o'clock  that  evening.  She  saw  tlie  persons  who  brought  the 
news  of  the  burning  of  the  Caroline,  through  the  window,  down  by 
I  lie  gate.  She  had  nevfer  seen  them  before.  When  witness's 
lather  told  McLeod  of  the  burning  of  the  Caroline,  witness  was  in 
ihe  kitchen.  A  person  cannot  look  out  from  the  kitchen  to  the 
street,  but  can  from  witness's  mother's  bed-room  ;  and  it  Avas 
rhrouorh  that  window  that  she  saw  the  men  wlio  brourjht  the  intel- 
ligence. 

HARRIET  MORRISON. 
Subscribed  and  sworn  to,  before  me,  this  17th  day  of  December, 
1840. 

L.  F.  BowEN,  Judge,  Counsellor,  &c. 

The  said  witness,  Harriet  Morrison,  on  being  cross-examined, 
deposes  and  says,  that  she  has  known  McLeod  about  five  years ;  that 
s;he  cannot  say  how  many  times  he,  McLeod,  had  slept  at  her  fatlier's 
liouse  before  tiie  burning  of  the  Caroline.  He  has  slept  there  two 
or  three  times  in  all.  She  cannot  tell  wlien  the  first  time  was 
ihat  he  slept  there.  She  recollects  that  he  slept  there  on  Christmas- 
night,  and  the  night  the  Caroline  was  burnt,  but  she  cannot  specify 
any  other  night ;  and  if  he  ever  slept  there  at  any  other  time,  she 
cannot  recollect  whether  it  was  before  or  after  the  Caroline  was 
burned.  She  don't  recollect  what  time  he  came  to  her  father's 
house  on  Christmas-day  ;  but  recollects  that  he  supped  there.  She 
(Joes  not  recollect  what  time  they  hau  supper,  the  night  the  Caroline 
was  burned.  Thinks  they  had  tea  between  eight  and  nine  o'clock. 
McLeod  came  there  on  horseback.  Witness's  brother,  Archibald, 
took  care  of  his  horse.  McLeod  was  not  walking  in  the  road  when 
lie  was  informed  of  the  burning  of  the  Caroline.  He  was  in  the 
parlor,  and  was  not  fully  dressed  at  the  time.  She  cannot  re(  ollect 
precisely  what  time  in  the  morning  this  was;  but  McLeod  break- 
fasted immediately  after,  and  left  witness's  father's  house  about 
ten  o'clock. 

HARRIET  MORRISON. 

Subscribed  and  sworn,  before   me,  this   17th  day  of  December, 
1810. 

L.  F.  Bow  EN,  Judge,  Counsellor,  &c. 

Here  the  Attorney  General  read,  on  the  part  of  the  prosecution, 


'"Mi.  1.' 


..t»^ 


214 


GOULD'S    REPORTER. 


although  taken  on  behalf  of  the  prisoner,  but  omitted  to  be  read  by  his 
Counsel — 'the  deposition  of  Duncan  Cameron,  as  follows : 

Duncan  Cameron,  of  the  township  of  York,  in  the  Home  District, 
in  the  Province  of  Canada,  Esquire,  atfed  sixty  years  and  upwards, 
being  produced  sworn  and  examined  on  behalf  of  the  Defendant  in 
the  title  of  these  depositions  named,  doth  depose  as  follows  : 

To  the  1st  interrogatory. he  says:  I  first  became  acquainted  with 
Alexander  McLeod  at  Toronto,  in  the  Home  District,  aforesaid,  in 
the  year  1835,  at  which  time  I  had  a  few  words  conversation  with 
him,  and  since  then,  though  I  have  seen  him  upon  one  or  two  occa- 
sions, I  have  never  had  any  further  conversation  or  communication 
with  him.  I  do  not  know  of  what  nation  Alexander  McLeod  is  a 
citizen  or  subject,  but  I  believe  him  to  be  a  Scotchman. 

To  the  2d  interrogatory  he  says :  I  do  recollect  of  the  destruc- 
tion of  the  Caroline.  The  time  was  about  the  end  of  the  month  of 
December  in  the  year  1837,  so  far  as  1  recollect.  I  was  in  Chippe- 
wa upon  the  night  the  Caroline  was  destroyed — and  i  arrived  at 
Chippewa  as  well  as  I  can  remember  upon  the  morning  of  the  day 
upon  which  the  Caroline  was  destroyed. 

The  3d,  4th,  5th,  6th,  7th,  Sth,  9th,  10th,  11th,  12th,  and  13th  in- 
terrogatories were  waived  by  consent  of  the  said  .Joseph  Center  and 
Hiram  Gardner,  and  were  not  thereupon  proposed  to  the  witness. 

To  the  last  interrogatory  he  says:  Upon  the  morning  of  the  de- 
struction of  the  Caroline,  he  thinks  about  9  o'clock  A.  M.,  in  com- 
pany with  Mr.  M.  C.  Migan,  the  Presbyterian  minister  of  St.  Thomas, 
I  stopped  at  Lieutenant  John  Morrison's  gate,  in  front  of  his  house 
near  Stamford,  about  three  or  four  miles  from  Chippewa — and  Mr. 
Morrison  came  down  to  his  gate.  I  then  and  there  had  a  conversa- 
tion with  him  for  about  five  minutes.  I  do  not  remember  any  par- 
ticular subject  of  conversation,  though  I  may  have  mentioned  to  him 
the  destruction  of  the  Caroline,  but  1  could  not  swear  that  I  did  so. 
I  only  now  remember  the  fact  of  having  held  a  conversation  with  Mr. 
Morrison  at  that  time. 

D.  CAMERON. 
Sworn  at  the  city  of  Toronto,  in  the  Home  District,  this  l6th  day  of 

September,  1841,  before  me, 

Adam  Wilson,  Commissioner. 

The  Attorney  General — I  will  also,  if  the  Court  please,  read  the 
indictment  which  is  now  pending  in  the  county  of  Niagara,  against 
several  persons  for  the  same  offence  as  that  with  which  the  prisoner 
is  charged.  This  is  matter  which  does  not  go  to  the  exclusion  of 
their  testimonj^,  but  I  wish  it  to  go  to  the  Jury  to  affect  their  credit. 

Mr.  Bradley — If  the  Court  please,  the  indictment  is  an  ex  parte 
proceeding. 

Judge  Gridley — My  impression  is  that  there  is  an  express  decision 
against  its  admissibility. 

Attorney  General — I  wish  to  show  if  your  honor  please,  that 
they  stood  in  the  light  of  accomplices. 

Mr.  Spencer — They  prove  that  themselves. 


eadby  his 

!  District, 
upwards, 
jndant   in 
's : 

[ited  with 
resaid,  in 
,tion  with 
two  occa- 
lunicatiou 
Leod  is  !i 

e  destrnc- 
month  of 
n  Chippe- 
arrived  at 
»f  the  day 

id   13th  in- 
Center  and 
vitness. 
of  the  de- 
:.,   in   com- 
Jt.  Thomas. 
f  his  house 
— and   Mr. 
L  conversa- 
r  any   par- 
ined  to  him 
t  I   did  so. 
)n  with  Mr. 

VIERON. 
6th  day  of 

lissioner. 

read  the 
ira,  against 
le  prisoner 
xclusion  of 
heir  credit, 
an  ex  partv 

ess  decision 

>lease,  that 


MCLEOD  6    TRI.\L. 


2  If) 


It, 


Attorney  General— Well  then  there  cau  be  ao  objection  to  my 
giving  the  best  proof  I  can  of  it. 

Mr.  Spencep. — Col.  McNab  was  indicted  too ;  was  he  not  ! 

Judge  Giudlev — I  think  there  is  an    express  decision    against 
addressing  himself  to  Mr.  Jenkins,  do  you  recollect  it  1 

Mr.  Jenkins  responded,  I  must  admit  there  is,  but  there  is  a  con- 
trary English  decision. 

Judge  Gridlev — If  there  is  an  indictment,  it  is  found  on  ex  parte 
testimony,  when  the  parties  had  no  opportunity  to  cross-examine  and 
confront  the  witnesses. 

Mr.  Jenkins — That  principle  has  been  acted  upon  nor  do  I  think  it 
material  in  the  present  instance. 

The  Attornev  General — Well,  then,  I  now  propose  to  offer  one 
of  the  depositions  which  the  defendant  has  taken  and  returned  here, 
but  which  he  does  not  think  it  hnportant  for  him  to  read.  I  will  now 
read  it. 

Mr.  Spencer — For  what  purpose  1 

The  Attorney  General — It  is  the  deposition  of  Russel  Inglis  ; 
and  I  read  it  to  rebut  the  testimony  which  you  have  offered. 

Mr,  Spencer — ^Perhaps  you  had  better  be  a  little  more  particular, 
Mr.  Attorney  General. 

Attorney  General — This  testimony  conflicts  with  the  testimony 
given  on  the  part  of  the  prisoner.  I  suppose  no  better  reason  can  be 
given  for  its  introduction^ 

JufGE  Griuley — If  it  conflicts  I  do  not  see  why  it  is  not  evidence. 

Mr.  Spencer — If  it  is  to  impeach  any  of  our  witnesses  it  is. 

The  Attorney  General  then  read  the  deposition  of  Russell  Inglis, 
bar-keeper  at  the  North  American  Hotel,  Toronto,  Upper  Canada,  as 
follows : 

Russel  Inglis,  of  the  city  of  Toronto,  in  the  Home  District  and 
Province  of  Canada,  aged  thirty-two  years  and  upwards,  being  pro- 
duced, sworn  and  examined  on  behalf  of  the  defendant,  in  the  title 
of  these  depositions  named,  doth  depose  as  follows,  viz  : 

To  the  first  interrogatory,  he  says :  I  have  known  Alexander  Mc- 
Leod  from  about  the  beginning  of  February,  183t).  I  am  bar-keeper 
of  the  North  American  Hotel,  and  the  reason  of  my  being  acquaint- 
ed with  him  is,  that  he  was  in  the  habit  of  residing  at  the  hotel  when 
in  Toronto.  His  visits  were  very  frequent.  I  believe  that  he  is  a 
Scotchman. 

To  the  2d  interrogatory,  he  says :  I  believe  that  it  was  on  or 
about  the  29th  day  of  December,  1837.  I  never  was  at  Chippewa, 
I  was  at  Toronto  at  that  time. 

The  3d,  4th,  5th,  6th,  7th,  8th,  9th,  10th,  11th,  12th  and  13th  di- 
rect interrogatories  were  waived  by  consent  of  the  said  Joseph  Center 
and  Hiram  Gardner,  and  were  not,  therefore,  proposed  to  the  witness. 

To  the  last  interrogatory,  he  says :  I  know  that  Alexander  Mc- 
Leod  arrived  at  the  North  American  Hotel  aforesaid,  in  the  city  of 
Toronto,  on  the  evening  of  the  31st  December,  1837,  and  put  up 
there  in  company  with  Major  Kingsmill,  Robert  Throop,  Mr.  Boswell, 
and  a  Mr.  Gordon,  and  several  others.  He  remained  at  the  said  ho- 
tel until  Wednesday  the  3d  of  January,  1838. 


•!,     1 


0\ 


''   I  * 


mk 


•216 


GOULD  S    REPORTER. 


I 


The  cross-interrogatorias  were  waived  by  consent  of  the  respec- 
tive counsel,  with  the  exception  ol"  the  eleventh,  which  was  put  at 
the  request  of  the  defendant's  counsel — tlie  counsel  for  the  people 
<»bjcctin?  ;   to  which  witness  says  : 

I  was  not  at  Davis's  tavern  at  Chippewa  at  the  time  mentioned  in 
tliis  cross-interrogatory,  nor  have  I  ever  been  at  Chippewa.  I  did 
not  see  him  at  or  near  Davis's  tavern  at  that  time,  or  at  any  other 
time.  I  was  in  Toronto  during  the  whole  time  included  in  this  cross- 
interrogatory,  and  Alexander  McLeod  was  residing  at  the  said  North 
American  Hotel  on  the  Monday  mentioned  therein. 

The  counsel  for  the  people  of  the  State  of  New  York  objected  to 
this  portion  of  the  evidence  as  irresponsive. 

RUSSEL  INGLIS. 
Sworn  at  the  city  of  Toronto,  in  the  Home  District^,  this  16th  day 
of  September,  1811,  before  us.  The  said  witness  having  been 
rtrst  sworn  that  the  answers  given  by  him  to  the  interrogatories 
proposed  to  him,  sho.ild  be  the  truth,  the  whole  truth,  and  noth- 
ing but  the  truth;  and  he  having  subscribed  the  same  in  our 
presence. 

Adam  Wilson,       )  ^         .    . 

o  D  }  Commissioners. 

Skcker  Buough,     ^ 

Rev.  John  J\Iarsh  was  then  called  and  examined  by  the  Attorney 
General — lam  acquainted  with  Samuel  Drown;  I  have  been  ac- 
([uainted  with  him  in  Canada  about  four  years ;  since  that  we  have 
lived  at  a  distance  apart ;  I  am  a  minister  of  the  gospel ;  of  the  Meth- 
odist Episcopal  denomination ;  I  was  intimately  acquainted  with 
Drown,  during  the  time  he  resided  in  Canada  ;  I  have  never  heard 
any  thing  against  him;  J.  have  no  reason  to  believe  that  he  is  not 
worthy  of  credit  under  oath ;  I  lived  at  Chippewa  during  the  whole 
time  he  did. 

Cross-examined  by  Mr.  Spencer — I  am  intimately  acquainted  with 
Drown  :  1  was  not  in  habits  of  daily  intercourse  with  him  during  the 
first  year  at  St.  Catherine's  ;  I  was  a  local  preacher  at  Chippewa  dur- 
ing the  four  years  ;  Di-ovvn  was  in  the  employ  of  my  brother  Charles 
Marsh  and  myself,  as  baker,  the  greater  part  of  the  time  ;  the  first 
year  he  was  at  St.  Catherine's,  driving  team  and  doing  such  work  as 
was  necessary  at  a  baking  establishment ;  my  brother  kept  a  temper- 
ance house  one  year,  and  had  a  livery  stable ;  Drown  drove  team 
part  of  the  year ;  falls  and  winters  he  was  in  our  employ,  and  when 
we  did  not  employ  him,  he  attended  to  the  lumbering  business,  taking 
care  of  saw  logs  for  other  people  ;  part  of  the  time  he  worked  for 
himself,  getting  out  some  barrel  staves ;  one  summer  he  was  in  our 
employ  ;  he  had  the  team  and  drove  with  passengers,  and  had  a  share 
in  the  profits  ;  I  never  heard  any  thing  said  one  way  or  the  other  re- 
specting his  character  for  truth  ;  I  never  heard  it  questioned. 

Piatt  Smith  examined  by  Mr.  Hawley — I  reside  in  Lockport ;  I 
never  lost  my  residence  there ;  in  December,  1837,  I  resided  in  Can- 
ada ;  I  was  in  Canada  then,  at  the  mouth  of  the  Chippewa  creek,  at 
Chippewa. 


MCLEOD  S    TRIAL. 


217 


lit   :M 


e  respec- 
iras  put  ut 
le  people 

itioned  in 
a.  1  did 
any  other 
this  cross- 
said  North 

bjected  to 

^LIS. 

i  ]6th  day 
ving  been 
rocratories 
,  and  noth- 
me  in  our 


ners. 

I  Attorney 
;  been  ac- 
Lt  we  have 
F  the  Meth- 
inted  with 
ever  heard 
he  is  not 
the  whole 

linted  with 
during  the 
jpewa  dur- 
ler  Charles 
the  first 
ch  work  as 
t  a  temper- 
rove  team 
and  when 
less,  taking 
worked  for 
was  in  our 
had  a  share 
le  other  re- 
led. 

ockport ;  I 
ded  in  Can- 
a  creek,  at 


Mr.  Spencer — What  do  you  propose  to  prove  by  this  witness  1  I 
object  to  cumulative  testimony. 

Mr.  Hawlev  said  he  intended  to  prove  the  same  facts  which  had 
been  proved  by  Drown,  to  show  that  the  evidence  of  McLeod  having 
been  at  Morrison's  was  false.  We  bring  this  witness  to  show  that 
McLeod  was  at  Chippewa.  If,  in  sustaining  a  witness,  who  has  been 
attacked,  it  should  incidentally  happen  to  be  cumulative  evidence,  it 
should  not  on  that  account  be  excluded. 

Judge  Gridley — You  are  entitled  to  replicatory  testimony  ;  if  a 
witness  is  attacked,  to  sustain  him.  But  the  question  is,  whether 
you  are  entitled  to  sustain  any  witness  by  cumulative  evidence. 

Mr.  BttAOLEY— I  have,  in  "evidence,  a  case  in  r)th  Carrington  and 
Payne,  299,  2ith  vol.  com.  law  reports,  page  330 ;  it  was  an  indict- 
ment for  robbery,  the  case  for  the  prosecution  had  been  closed,  and 
che  defence  was  an  alibi.  W.  J.  Alexander  for  the  prosecution, 
wished  to  call  a  witness  in  reply,  to  prove  that  he  saw  the  prisoner 
near  the  spot  where  the  robbery  was  committed.  The  justice  decid- 
ed that  whatever  is  a  confirmation  of  the  original  case,  cannot  be 
given  as  evidence  in  reply  ;  and  the  only  evidence  that  can  be  receiv- 
ed, is  that  which  goes  to  cut  down  the  evidence  on  the  part  of  the 
defence.  The  learned  counsel  referred  to  22  Wendell,  22.").  The 
authority  of  the  case,  as  relating  to  criminal  cases,  was  referred  to 
by  Mr.  Justice  Cowen  in  that  case.  There  is  another  case — 1st  Car- 
rington and  Payne,  118  ;  and  also  2d  Carrington  and  Payne,  il.'). 

Tiie  Attorney  General — Your  Honor  will  recollect  that  the 
charge  in  this  case  is  that  the  prisoner  killed  Amos  Durfee,  in  the 
county  of  Niagara  and  the  State  of  New  York.  We  have  produced 
various  witnesses  to  sustain  that  charge ;  among  others,  one  who 
swears  that  he  heard  him  declare,  in  so  many  words,  that  he  was  the 
man  who  killed  Amos  Durfee.  If,  iffter  having  produced  that  wit- 
ness, we  had  rested  there,  and  the  prisoner  had  gone  on  to  make  out 
the  case  he  has,  by  attempting  to  show  that  at  that  very  time  he  was 
at  Morrison's,  in  Canada,  I  would  submit  to  the  Court,  if  there  is  any 
part  of  the  testimony  we  have  given  in  chief,  out  of  our  liberality, 
which  would  not  have  been  within  the  rule  of  rebutting  evidence 
against  his  alibi.  We  have  given  very  much  testimony  in  the  open- 
ing of  the  case,  which  was  strictly  rebutting  testimony — for  instance, 
two  or  three  witnesses  state  they  saw  McLeod  at  Chippewa  at  that 
time.  The  whole  point  of  this  is  derived  from  the  testimony  after- 
wards given.  What  is  all  this  testimony  given  on  the  part  of  the 
State,  but  rebutting  testimony  1  Now,  because  out  of  liberality  we 
have  gone  so  far,  will  the  counsel  for  the  prisoner  insist  that  our  lib- 
erality shall  be  turned  against  us  1  Above  all  things,  in  a  case  of 
this  kind,  when  the  great  object  in  view  is  justice,  and  the  public  in- 
terest requires  that  nothing  that  is  pertinent  and  proper  to  the  case 
shall  be  excluded,  material  evidence  of  this  kind  should  not  be 
thrown  out  through  mere  technical  forms.  The  witness  now  on  the 
stand  will  testify  to  the  character  of  Drown ;  and  his  oath  will  di- 
rectly and  positively  sustain  Drown.  This  is  a  case  which,  it  seems, 
the  learned  counsel  for  the  defendant  have  deliberately  prepared  for, 
as  to  their  authorities ;  I  had  not  the  least  idea  of  it,  and  am  not  pre- 

28 


"l^ 


■t'  s> 


:A^:f 


ft 


^if' 


218 


mcleod's  trial. 


pared  to  look  to  authority  on  this  point.  We  contend  that  the  testi- 
mony we  propose  to  offer,  will  coine  fully  and  fairly  within  the  defi- 
nition of  rebutting  testiin  .my.  What  is  the  case  referred  to  here  ^  It 
Dears  no  analogy  to  this;  it  would,  if  we  should  go  on  and  prove  that 
McLeod  was  on  the  wharf  at  Schlosser — that  would  be  testimony  in 
chief;  but  the  fact  that  he  was  at  Davis's  tavern — what  connection 
would  it  have  with  the  case,  until  the  testimony  of  the  defendant  was 
first  in  !  When  they  go  to  establish  the  fact  that  he  was  at  Morri- 
son's, we  may  bring  witnesses  to  show  that  he  was  not  there;  and 
for  this  cause,  if  no  other,  that  the  witnesses  who  said  that  he  was, 
are  not  to  be  believed  ;  it  will  then  go  to  show  a  fact  that  is  utterly 
irreconcileable  with  the  truth  of  the  testimony,  thqy  have  brought 
here.  Is  there  any  evidence  that  can  be  produced  that  comes  more 
strictly  within  the  rule  of  rebutting  testimony  1  They  prove  a  col- 
lateral fact,  which  is  inconsistent  with  the  charge  of  the  indictment, 
viz  :  they  prove  a  second  collateral  fact,  which  is  inconsistent  with 
the  collateral  fact  they  first  set  up ;  that  is  the  whole  force  of  it. 
By  this  witness  we  propose  to  show  directly  his  knowledge  of  the 
witness  on  the  part  of  the  prisoner,  and  of  the  character  of  this  Avit- 
ness.  The  question  is  made,  to  what  extent  we  have  a  right  to  go"? 
I  think,  if  your  Honor  please,  that  in  any  view  of  the  case,  the  case 
cited  here  does  not  bear  at  all — there  the  prosecutor  attempted  to 
show  the  party  present  at  the  robbery  ;  that  is  a  leading  affirmative 
fact,  but  this  which  wo  attempt  to  prove  was  not  essential  to  our  ori- 
ginal case  at  all. 

Mr.  Jenkins. — There  are  certain  rules  laid  down,  which,  as  taken 
up,  from  some  authorities  guide  us  one  way  ;  and  from  other  author- 
ities, guide  us  the  other  way,  but  the  principal  rule  is  the  rule  of 
good  sense.  Thus,  it  is  laid  down  in  the  note,  that  where  a  party 
calls  on  a  witness,  and  proves  a  certain  fact,  necessary  to  his  cause, 
and  gives  over  the  witness  for  cross-examination,  if  the  party  intro- 
ducing the  witness  desires  then  to  proceed  further  to  prove  material 
facts,  he  has  not  the  right,  because  he  did  not  open  that  subject,  at 
his  first  examination  ;  and  yet,  in  the  trial  in  this  case,  how  often  it 
has  happened  on  the  re- examination  of  a  witness,  that  he  has  been 
permitted,  without  objection,  to  give  further  testimony  ;  and  it  is  so, 
by  the  universal  practice  in  this  State,  not  to  require  parties  to  ad- 
here strictly  to  the  rules  laid  down  in  the  books. 

But  to  this  case  ;  first  we  prove  the  fact,  that  there  has  been  a 
murder  committed — or  we  assume  it  for  the  purpose  of  this  argu- 
ment— we  prove  that  the  defendant  was  engaged  in  this  murder,  and 
embarked  in  the  boat ;  now,  how  do  we  know  what  defence  the  de- 
fendant is  going  to  set  up  1  If  we  were  bound  by  this  rule  in 
this  case,  we  should  have  to  be  able  to  foresee  the  amount  and 
strength  of  evidence  he  might  produce,  before  we  could  rest  our 
cause  ;  now  is  this  to  be  required  of  any  living  man  1  All  the  pros- 
ecution is  bound  to  make  out  is,  a  case  charging  on  the  defendant 
the  crime  which  has  been  committed,  and  then  we  have  a  right  to 
rest  our  cause,  and  if  they  introduce  proof  of  the  fact  that  he  was  in 
another  place,  manifestly  we  have  the  right  to  do  it  away  by  such 
evidence,  that  shows  he  was  not  at  Morrison's  at  that  time.     We 


ness. 


%''^ 


MCLEOD  S   TRIAL. 


219 


the  testi- 
the  defi- 
here  \  It 
)rovc  that 
timony  in 
onnection 
ndant  was 
at  Morri- 
iiere ;  and 
t  he   was, 
is  utterly 
2  brought 
mes  more 
3ve  a  col- 
idictment, 
stent  with 
)rce  of  it. 
Ige  of  the 
f  this  wit- 
ght  to  go  \ 
;,  the  case 
jmptcd   to 
afRrmative 
to  our  ori- 

h,  as  taken 
ler  author- 
he  rule  of 
are  a  party 
his  cause, 
)arty  intro- 
fe  material 
subject,  at 
ow  often  it 
fj  has  been 
.fid  it  is  so, 
ties  to  ad- 
has  been  a 

this  argu- 
fiurdtr,  and 
nee  che  de- 
his  rule  in 
imount  and 
rest  our 
11  the  pros- 
defendant 
a  right  to 
■t  he  was  in 
ray  by  such 

time.    We 


propose  to  show  the  fact  that  he  was  in  another  place  ;  are  we  bound 
to  cumulate  evidence  to  show  the  fact  that  he  was  not  there,  when 
no/i  con^liit  it  may  he  denied  tiiat  he  was  not  ihere  at  all  \  Surely  this 
is  not  consistent  with  any  ground  of  reasoning  or  good  sense. 

.ludgc  Gridlky. — It  would  be  satisfactory  to  me,  to  hear  the  note, 
read. 

Mr.  HAWLEif  then  read  at  some  lennfth  from  Cowan's  and  Hill's 
notes,  citinff  various  cases:  a  strict  uniformity  at  all  times  is  not  to 
be  expecte(l,  and  indeed  in  some  instances  will  prove  injurious  to 
justice  ;  much  therefore  is  to  be  left  to  the  sound  judgment  and  pru- 
dence of  the  Judge.  All  testimony  in  chief  or  special,  that  which 
goes  to  affirmative  matter  should  be  produced  as  far  as  possible  in 
opening  the  cause.  In  conducting  the  examination  of  a  single  wit- 
ness, we  have  a  miniature  course  of  the  examination  of  a  cause. 
The  witness!  is  first  examined  by  the  party  producing  him  ;  after 
which  the  party  opposite  can  examine ;  and  then  the  other  party  re- 
examine. On  the  primary  examination  of  a  witness  you  are  bound  on 
your  peril  to  ask  all  material  questions,  and  if  you  omit  them,  it  can- 
not be  done  in  reply.  If  a  question  has  been  omitted  in  chief  exam- 
ination, the  usual  course  is  to  ask  the  question  to  the  Court.  "  It  is 
discretionary  with  the  Court,  after  charging  a  jury,  on  a  witness's 
testimony,  which  is  vaijue  and  indefinite,  whether  they  will  allow 
him  to  be  called  back/'  4th  Wendell,  24.9,  Law  vs.  Merrill,  268. 
*'  Evidence  should  not  be  given  by  piece-meal  generally,  but  some- 
times be  left  to  the  judgment  and  sound  prudence  of  the  Court,  and 
a  Court  of  Errors  ought  never  to  interfere  except  when  injustice  has 
been  done  by  it."  1st  Monroe,  117,118.  "The  general  rule  is  ad- 
hered to  with  the  greatest  strictness  in  crii^inal  cases."  "  Your  evi- 
dence in  reply  must  in  direct  and  express  terms,  negative  the  pris- 
oner's proof."  Various  other  cases  were  cited  in  the  note,  which 
then  continued — "  all  this  shows  that  the  Court  must  have  a  discre- 
tion ;  the  English  Courts  have  allowed  exceptions  to  the  rule,  though 
with  formality  and  caution."  "  In  the  Courts  of  Pennsylvania  the 
counsel  is  allowed  to  ask  any  question,  on  any  matter,  in  reply." 
"  The  omission  or  rejection  of  a  witness  after  a  case  is  closed,  is  a 
mere  matter  of  discretion." 

]Mr.  Jenkixs. — I  feel  that  it  is  preity  well  established  in  this  Court, 
that  it  is  a  matter  in  the  discretion  of  the  Court,  whether  the  testi- 
mony shall  be  introduced  or  not.  The  reason  of  this  deviation  from 
the  strict  rules  as  authorized  in  the  note  just  read,  I  return  to,  and  I 
repeat,  how  shall  we  know  the  nature  of  the  evidence  to  be  brought 
forward,  or  any  thing  pertaining  to  it  1  Is  it  possible  that  after  we 
have  examined  a  great  number  of  witnesses  to  show  that  he  was 
there,  and  left  our  cause  without  any  sort  of  defect  whatever,  that 
we  must  gv  forward  and  anticipate  not  only  the  defence  to  be  set  up, 
but  the  strength  of  it  1     It  is  utterly  impossible. 

Mr.  Spencer  said  in  sustaining  this  objection  we  may  properly  ad- 
vert to  the  proceedings  in  this  cause.  We  apprised  the  party  of  our 
objection  before  the  people  rested.     If — 

Judge  GuiDLEr  said,  I  will  relieve  you.  In  looking  at  this  I  am 
satisfied,  I  have  no  doubt ;  but  ordinarily  there  is  discretion  left  to 


'  . 


ffilH 


•If 


.tfi 


I 


220 


Gould's  reporter. 


M 
i 


I 


.«; 


the  Court ;  in  this  note  of  Cowan's  and  Hill's,  probably  about  all  the 
r-ascs  on  this  subject  have  been  cited — the  cases  in  England,  in  sevc- 
lal  of  the  States,  and  among  others,  in  Pennsylvania.  In  Pennsyl- 
vania the  rule  has  been  laid  down  in  the  utmost  extent  of  liberality 
and  indulgence,  and  ii  is  a  decision  from  the  courts  of  that  State 
that  testimony  whicli  is  replicatory  is  admissible,  although  it  be  di- 
rect evidence  to  establish  the  original  proposition.  The  decisions 
in  that  State  arc  more  indulgent  than  those  which  arc  found  to  have 
taken  place  in  England,  or  in  the  United  States  courts,  or  in  the 
courts  of  the  other  Slates.  So  far  as  I  can  see  from  the  reading  of 
this  note,  1  have  not  a  doubt  but  to  a  certain  extent,  in  civil  cases,  it 
is  a  rule  of  discretion,  as  in  cases  of  accident,  the  sudden  illness  of 
the  witness,  &c.,  that  such  cases  do  afford  good  reasons  for  an  ex- 
ception to  the  general  rule  ;  the  ground  is  this,  that  the  general  rule 
is  adhered  to  with  the  greatest  strictness  in  criminal  cases — that  the 
proof  which  is  to  be  admitted  in  reply,  is  to  be  strictly  in  reply,  in 
opposition  to  being  cumulative.  After  having  considered  this  rule 
as  applicable  to  civil  cases,  the  following  remarks  are  made  ;  the 
general  rule  is  adhered  to  with  the  greatest  strictness  in  criminal 
cases.  [Judge  Gvidley  then  referred  to  one  of  the  cases  just  read  ; 
he  then  continued]. 

Now  in  this  case,  the  Court  refused  to  admit  the  evidence,  saying 
that  it  was  such  as  would  be  proper  to  have  originally  been  given  ; 
therefore  the  case  is  an  admission  in  favor  of  the  rule,  in  this  sense, 
that  although  the  evidence  offered  in  reply  is  in  truth  contradicto- 
ry to  that  of  the  defendant,  yet  if  the  evidence  is  proper  to  establish 
the  main  proposition  originally  to  be  established  by  the  people — or 
the  king  in  England — then  it  is  inadmissible.  The  following  civil 
case  presents  the  same  adherence  to  the  rule  : 

"  Whatever  is  confirmation  of  the  original  case,  cannot  be  given 
as  evidence  in  reply  ;  and  that  which  can  be,  is  that  which  is  reply, 
without  being  in  confirmation  of  the  original  case."  This  accords 
with  the  other  cases.  Now  to  apply  this  case — it  is  said  that  the 
evidence  given  by  the  witness  sought  to  be  sustained  was  not  in 
confirmation  of  the  original  case,  but  strictly  in  reply.  If  we  look 
to  the  circumstances  of  this  case,  I  think  we  shall  see  with  entire 
clearness,  that  it  is  a  portion  of  the  evidence,  necessary  to  establish 
the  original  case.     The  charge  is  the  murder  of  Amos  Durfee. 

In  order  to  make  out  IMcLeod's  connection  with  this  transaction, 
no  one  swears  that  they  saw  him  there.  Appleby  thought  he  saw 
him — but  it  was  shown  that  the  murder  was  committed  by  the  crews 
of  five  boats,  whicli  made  an  attack  on  the  Caroline ;  and  in  the 
course  of  that  attack,  some  person  of  the  crews  performed  that  deed. 

Ill  order  to  show  that  McLeod  was  one  of  the  party,  evidence  was 
given  to  show  that  the  party  embarked  near  the  cut  leading  into 
Chippewa  Creek.  This  witness  Drown  is  called  to  prove  that  he 
saw  McLeod  disembark,  and  saw  him  at  a  tavern  the  next  morning. 
Now  then,  this  is  material  evidence,  directly  necessary  to  connect 
the  prisoner  with  the  traiisaction  which  originated  the  murder.  It 
is,  therefore,  not  only  pertinent,  but  very  material  evidence,  to  show 
that  McLeod  was  connected  with  the  crime  of  murder.    Now,  in 


r   4 


Mcleod's  trial. 


221 


Hi 


It  all  the 

in  sevc- 
Pennsyl- 
liberality 
lat  State 
it  be  di- 
iecisions 
1  to  have 
ir  in  the 
eading  of 

cases,  it 
illness  of 
'or  an  ex- 
neral  rule 
-that  the 
,  reply,  in 
1  this  rule 
nade ;  the 
1  criminal 
ust  read  ; 

ce,  saying 
en  given  ; 
this  sense, 
intradicto- 
)  establish 
leoplc — or 
wing  civil 

t  be  given 
h  is  reply, 
is  accords 
id  that  the 
vas  not  in 
If  we  look 
ith  entire 

0  establish 
irfee. 

ransaction, 
rht  he  saw 
r  the  crews 
ind  in    the 

1  that  deed, 
idence  ^vas 
lading  into 
ove  that  he 
a  morning. 

to  connect 
nurder.  It 
ce,  to  show 
Now,  in 


order  to  show  that  ho  is  guiltless  of  the  crime  of  murder,  he  intro- 
duces an  n  ibi.  The  prosecution  brouglu  forward  the  testimony  of 
Drown  conlradicting  this,  and  now  propose  to  rebut  that  evidence 
by  the  additional  evidence  of  Smitli.  Now,  it  seems  to  me  tiiat  if 
tl|p  evidence  is  in  confirmation  of  the  original  case,  although  if 
would  go  to  contradict  the  witnesses  who  have  testified  that  McLeod 
was  at  Chippewa  at  the  time,  yet  it  will  be  direct  evidence  :  and  if 
evidence  were  produced  to  show  that  McLeod  fired  the  fatal  gun,  it 
would  be  equally  evidence  that  McLeod  was  there  ;  it  would  be  ex- 
press, positive  evidence  of  the  guilt  of  McLeod,  and  as  such,  would 
be  inadmissible.     With  respect  to  the  discretion — 

Mr.  Je.nki.ns — Allow  me  to  cite  the  authority  of  the  case  of  the 
People  vs.  Mather.  That  was  a  criminal  case,  and  the  court  allowed 
a  witness  to  be  re-called  and  re-examined  by  the  same  party  on  mat- 
ters on  which  he  had  been  before  examined  ;  and  the  Supreme  Court 
held  that  it  was  discretionary.  This  shows  that  the  discretionary 
power  is  appiicublo  to  criminal  cases,  because  this  was  an  indict- 
ment against  Mather  for  murder. 

Judge  Gridlev — In  that  case  the  witness  was  the  same  person 
who  had  been  introduced  before  ;  the  opposite  party  might  have  had 
an  opportunity  to  introduce  witnesses  to  show  that  he  was  a  man 
luiwortby  of  credit.  In  this  case,  I  remark,  there  are  none  of  the 
circumstances  to  justify  it,  if  it  were  true  that  tliero  existed  a  discre- 
tion, in  criminal  and  capital  cases,  in  relation  to  opening  branches  of 
the  defence  not  before  opened.  It  seems  to  me,  therefore,  that  if  I 
ascertain  what  the  rule  is,, which  Cowan  doclaves  is  adhered  to  with 
the  greatest  '^irictness  in  criminal  cases,  and  which  is  proved  to  be 
the  rule  in  adjudged  cases,  that  1  am  bound  to  regard  it ;  if  it  is  to 
be  regarded  at  any  time,  it  should  be  in  criminal  cases.  This  is  my 
opinion,  and  I  so  adjudge. 

The  Attornkv  Ge.neual — The  rule,  as  laid  down  by  the  court 
does  not  apply  to  the  evidence  we  propose  to  offer.  I  have  this  to 
remark,  that  the  discretion  vested  in  the  court  is  properly  to  avoid 
anytiiing  like  unfairness  or  surprise  ;  but  in  a  case  where  the  court 
is  satisfied  that  there  has  been  no  disposition  to  entrap  the  party,  if 
would  seem  to  me  that  the  discretion  of  the  court  to  exclude  from 
the  jury  the  light  of  important  testimony,  is  settled  in  a  case  ex  rig- 
ore.  We  are  by  this  rule,  taken  entirely  by  surprise,  in  testimony 
which  is  material ;  as  bearing  on  the  case  attempted  to  be  set  up  by 
tiie  defendant — not  only  material,  but  vital.  On  that  point,  what- 
ever may  be  the  case  in  court,  it  will  not  be  satisfactory  as  to  th" 
innocence  of  the  prisoner,  unless  this  testinmny  is  allowed.  Smith 
was  an  employer  of  Drown,  who  knows  bis  character  and  can  testify 
of  it.  That  is  of  all  men  in  the  w^orld,  the  proper  man,  to  call,  to 
strengthen  and  corroborate  the  witness,  who  is  a  vital  witness.  If 
ever,  therefore,  there  was  a  witness  who  was  a  rebutting  witness,  or 
one  who  could  sustain  an  impeached  witness,  it  is  Smith,  who  will 
sustain  th3  testimony  of  Drown.  It  is  not  cumulative  evidence  ;  all 
we  ask  is,  that  we  may  be  allow-ed  to  show  that  the  testimony  of 
Drown  is  true  ;  it  is  not  to  go  over  the  same  story,  by  any  means, 
but  to  sustain  the  evidence  of  Drown.     We  also  propose  to  show. 


-.  .1 


m  <- 


I 


'222 


fiOULo's    REPORTER. 


ii 


^f^i 


by  thosR  who  emjiloyptl  him,  the  reputation  and  the  chnrncter  of  the 
witness.  In  any  point  of  view,  I  cannot  conceive  that  this  witness 
is  not  nnost  strictly  within  the  rules  of  evidence,  if,  in  this  vital  case, 
they  are  to  he  strictly  applied;  most  assuredly,  had  I  not  supposed 
that  this  would  have  been  within  the  rule,  I  should  have  broutjht  it 
forward  previously  ;  I  would  ask  of  the  court  to  exercise  the  dis- 
iTetion  in  this  case,  cautiously,  and  with  reference  to  this  witness,  I 
ask  the  court  to  allow  nic  to  examine  him,  us  a  witness  to  sustain 
Drown. 

Mr.  Jknkins. — .We  ofTer  to  show  that  the  prisoner  was  not  at  Mr. 
Morrison's,  by  showinnf  that  he  was  at  Chippewa  the  29th  of  De- 
cember, at  nif^ht,  and  was  there  the  next  morninjr,  and  also  the  iden- 
tical time  when  the  Caroline  was  burned,  that  is  when  they  were 
embarkinfj  and  debarkinfr ;  and  that  lie  was  at  Chippewa  on  the 
morning  afterwards,  before  simrise,  and  from  that  time  to  10  o'clock. 
1  wish  to  put  that  as  a  distinct  offer,  and  I  apprehend  it  does  not 
come  within  the  rule,  so  as  to  be  excluded. 

.fudge  GiUDLEV. — I  have  a  single  remark  to  make,  not  assigning 
any  further  reason  for  the  decision  made  ;  but  in  relation  to  the 
judgment  made,  I  am  sorry  to  hear  an  argument  suggested,  on  the 
part  of  the  Attorney  General,  that  the  decision  will  not  be  satisfac- 
tory to  the  public. 

The  AxTORNKy  Gunhral. — If  the  court  refers  to  my  remarks,  I 
beg  to  say  I  did  not  intend  anything  of  that  kind. 

Judge  Gridley. — Sitting  here,  as  I  do,  independent  of  all  public 
opinion,  on  a  question  of  law,  as  I  regard  it  conscientiously,  I  can 
entertain  no  anxiety  whatever  as  to  whether  the  deci-iou  will 
address  itself  to  the  feelings,  good  or  ill,  of  others.  I  havt:  in  this 
very  cause  excluded  from  those  depositions  every  portion  which 
was  not  responsive.  Because  I  felt  myself  rigidly  bound  to  decide 
according  to  my  own  notion  of  law.  1  felt  that  I  had  no  right  in  a 
capital  case  to  enlarge  the  rules  of  evidence,  but  was  bqund  to  follow 
them,  as  they  existed.  I  mean  this  decision  to  stand,  to  exclude  the 
evidence  offered,  but  not  in  any  way  to  exclude  testimony  which  may 
be  adduced  in  support  of  Drown,  who  may  have  been  impeached. 

The  Attorney  General  then  proceeded  to  examine  the  witness. 

Plait  Smith,  examined  by  the  Attorney  General. — I  am  ac- 
quainted with  Samuel  Drown ;  I  have  known  him  about  a  year  ;  he 
was  employed  by  my  brother,  who  kept  a  tavern  ;  I  boarded  there  ; 
I  was  woke  up  on  the  night  the  Caroline  was  destroyed. 

Mr.  Spencer. —  What  do  you  propose  to  prove  ^. 

Attorney  General. — The  character  of  Drown,  and  also  to  sustain 
his  testimony. 

Judge  Gridley. — Howl 

Attorney  General. —  Mr.  Drown  has  here  made  a  statement,  and 
I  wish  to  show  that  he  had  before  made  the  same  statement  to  the 
witness. 

Mr.  Spencer. — That  has  been  overruled.  The  learned  gentleman 
cited  23  Wendell,  p.  50,  to  show  that  evidence  to  corroborate  the 
testimony  of  a  former  witness  in  this  way  was  inadmissible.  There 
were,  however,  special  circumstances  under  which  it  might  be  done, 


as  wl 

was  1 

I'iVide 

was  a 

the  MK 

The 

witnos 

Drown 

and  pli 

cumstfl 

some  r 

port  ai 

portion 

t'/fer  tc 

Jiidg 

fo  be  ii 

Judg 

>>n  a  fo: 

Siiprem 

lu   ai'C( 

!:uv,  as 

would   i 

cases. 

dence  n 

The  I. 

to  show 

attacked 

he  (the  \ 

line  was 

that  wit 

into  the 

ran  forw 

on  and  f 

until  the 

with  the 

roborate: 

Judge 

the  case 

strike  mt 

The  A 

here  shoi 

cept  wha 

down  tog 

together- 

JUDGE  ( 

that  this 
portions  ( 
he  knew 

His  (Jt 
verned  by 

Mr.  Br 


MCLEOD  s    TItML. 


223 


■r  of  the 
wilncHS 
lal  case, 
upposed 
ouafliLit 
the  (lis- 
ilnt'ss,  I 
[>  sustain 

3t  iit  Mr. 
Ii  of  De- 
the  iden- 
iiey  were 
a  on  the 
)  o'clock, 
does  not 

assigninfT 
m  to  the 
d,  on  the 
e  satisfac- 

emarks,  I 

all  public 
sly,  I  can 
i.-.iou  will 
vt:  in  this 
ion  which 
to  decide 
right  in  a 

to  follow 
cclude  the 
vhich  may 
eached. 
witness. 
-I   am   ac- 

year ;  he 
led  there  ; 


}  to  sustam 

ement,  and 
lent  to  the 

gentleman 
borate  the 
le.  There 
It  be  done. 


as  where  the  dmrgo  was  iniulo  that  thr  statement  of  the  witness 
was  colored,  and  lliat  motive  existed  for  coloring  the  testimony. 
Evidence  might  be  given  to  show  this  if  charged  that  his  evidence 
was  a  fabrication  of  a  late  date,  that  he  had  told  a  similar  story  when 
tlie  motive  to  distort  his  evidence  did  not  exist. 

The  ArroiiNKV  CiKM".it,\i.  replied. — lie  wislie  1  to  prove  by  this 
witness,  that  certain  things  stated  in  court  by  Drown  were  true. 
Drown  had  stated  that  this  witness  was  with  him  at  certain  periods 
and  places,  and  the  Attorney  General  wished  to  prove  that  those  cir- 
cumstances were  true  by  other  testimony,  Drown  having  been  in 
some  respects  impeached.  This  testimony  was  offered  to  give  sup- 
port and  credence  to  Drown's  entire  statement,  by  showing  that  a 
portion  of  what  he  had  said  was  true.  He  said  he  should  afterwards 
offer  to  prove  Drown's  declarations. 

Judge  Gkiulrv  asked  the  opinion  of  Judge  Denio,  who  happened 
to  be  ii<  court  as  a  spectator,  on  this  point. 

Judge  Dc/iio  said  that  he  had  his  attention  called  to  this  question 
1)11  a  former  occasion  ;  that  he  was  the  referee  whose  judgement  the 
Supreme  Court  had  set  a>idc.  The  fads  in  that  case  Avcre  those  of 
:ui  accomplice  called  on  the  part  of  the  prosecution  ;  and  yet  the 
l;iw,  as  laid  down  by  the  Chief  Justice,  was  exceedingly  broad,  and 
would  admit  the  testimony  now  otfered  ;  it  seemed  to  cover  all 
cases.  But  under  the  present  circumstances  he  thought  the  evi- 
dence now  offered  was  inadmissable. 

The  Attokxey,  fiENnuAL  said  that  testimony  having  been  offered 
to  show  that  Drown  was  unworthy  of  belief,  his  whole  evidence  was 
attacked.  He  now  proposed  to  prove  by  the  witness  called,  that 
he  (the  witness)  was  awakened  by  Drown,  who  told  him  that  the  Caro- 
line was  on  fire — that  Drown  proposed  to  go  up  to  the  beacon  light ; 
that  witness  got  up  and  went  with  Drown ;  that  they  went  down 
into  the  road  together  ;  that  they  saw  boats  coming  in  ;  that  Drown 
ran  forward  of  him  to  see  who  were  in  the  boats ;  that  Drown  ran 
on  and  fell  in  with  the  party ;  that  Smith  continued  on  his  course 
until  their  paths  again  came  together ;  they  then  walked  together 
with  the  party,  which  evidence  most  materially  strengthens  and  cor- 
roborates the  testimony  of  Drown. 

Judge  Demo. — If  this  testimony  would  have  been  immaterial  in 
the  case,  except  as  connected  with  what  was  material,  it  does  not 
strike  me  how  it  is  now  admissible. 

The  Attorney  General — If  we  can  produce  a  witness  who  will 
here  show  the  correctness  of  all  which  has  been  stated  by  Drown,  ex- 
cept what  was  seen  by  the  eyes  of  that  witness  alone — that  they  went 
down  together — that  they  came  up  together— that  they  were  there 
together — 

Judge  Gridley  interrupted  the  Attorney  General  by  remarking 
that  this  evidence,  if  admitted,  would  also  goto  strengthen  the  other 
portions  of  the  former  witness's  testimony  in  which  he  declared  that 
he  knew  nothing  which  would  materially  affect  the  case. 

His  (Judge  Gridley's)  opinion  was,  that  this  case  should  be  go- 
verned by  the  rules  laid  down  in  the  12th  Wendell. 

Mr.  Bradley  said,  Mr.  Bates,  the  witness,  was  not  called  to  prove 


Tli  ..   >I 


"I 


»'   * 


'.fll 


)-;;,. 


12'V 


(iOVLD  h    REl'OKTER. 


that  Drown  wns  unworthy  of  hpliof,  hut  hiitiply  ns  to  dot-hirntion^ 
wliich  hu  liad  iiiiidu  on  (mother  oucasion,  to  show  thut  they  di(- 
fored. 

Judjro  f'liiiii.r.v  thonij^ht  proof  couhl  not  ho  pfiviMi  to  show  thnt  ,t 
witMJ's-*  h:id  ti»|f|  the  sunit!  story  elsewhere.  It  1111181  he  taken  on  iht- 
Holcinnity  of  Win  own  oath. 

The  ArruitNKv  (iKNKiiAi,  said  lio  was  unahle  to  perceive  why  thi>. 
ease  did  not  eoine  within  the  cxeepticni  in  '2!M  Wendell,  since  it  ha> 
been  insinnated,  by  the  Counsel  for  the  prisoner,  that  the  witness 
Drown,  was  impelled  hy  a  slronir  desire  to  eorivict  the  prisoner,  and 
now  it  is  od'ered  to  show  the  declarations  of  the  witness.  Drown,  h(  • 
r>ro  Huch  a  state  of  thing's  could  have  existed.  lie  did  think  that  he 
had  a  rijrht  to  do  so,  and  that  it  would  throw  li^Jflit  upon  the  case. 

At  the  siipriifestion  of  the  Court  the  decision  in  2.'3d  Wendell,  p.  ;')(•, 
was  then  read  and  commented  upon  by  the  Court. 

'•  Proof  of  (led, u'ations  made  by  witnesses  out  of  Court,  in  corro- 
boration of  testimony  jrivcn  by  him  on  the  trial  of  a  cause,  is  a- 
a  (jeneral,  and  almost  iiiiiversal  rule,  in'idmissiljfc. 

It  seems  however  that  to  this  rule  llierc  arc  exceptions,  and  that 
under  special  circumstances  such  proof  will  be  received  :  as  where 
the  witness  is  charpred  with  giving  his  teslimi»ny  under  tlic  influence 
of  some  motive  prompting  him  to  make  a  false  or  eolov^d  statcmeii!. 
a  may  be  shown  that  he  made  similar  declarations  at  a  time  when 
the  imputed  motive  did  not  exist.  .So  in  contradiction  of  evidence 
t<'nding  to  show  that  the  account  of  the  Iransaclion  given  by  the  wit 
ness,  is  a  fabrication  of  lute,  ilittc,  it  may  he  shown  that  the  same  ac- 
count was  given  by  him  before  its  nliimatc  effect  and  operation  ariv- 
ing  from  a  change  of  circumstarwres  could  have  betM  foreseen." 

'•  When  a  witness  is  contradicted  his  testimony  may,  of  course,  he 
fortified  by  proving  the  same  facts  by  others.  If  his  character  fi»r 
trntli  is  attacked,  it  may  be  supported  by  proving  it  good  ;  and  ii 
evidenf^e  is  given  that  the  witness  has  made  declarations  out  of  Couri 
iuconsistant  with  his  testimony,  it  may  be  shown  that'those  declara 
tions  were  made  under  such  circumstances  as  not  to  detract  from 
liis  credibility.  If  an  attempt  is  made  t()  discredit  the  witness  on 
the  frround  that  his  testimony  is  given  under  the  influence  of  some 
motive  prompting  him  to  make  a  false  and  colored  statement,  the 
party  calling  him  has  been  allowed  to  show,  in  reply,  that  the  wit- 
ness made  similar  declarations  at  a  time  when  the  imputed  motive 
did  not  exist. 

But  as  a  general,  and  almost  universal  rule,  evidence  of  what  the 
wimes^s  has  said  out  of  Court,  cannot  be  received  to  fortify  his  testi- 
mony. It  violates  a  first  principle  in  the  law  of  evidence,  to  allow  ii 
party  to  be  affected,  either  in  his  person  or  his  property,  by  the  de- 
clarations of  a  witness  made  without  oath.  And  besides,  it  can  he 
no  confirmation  of  what  the  witness  has  said  on  oath,  to  show  tlr.it 
he  has  made  similar  declarations  when  under  no  such  solemn  obli- 
gation to  speak  the  truth.  It  is  no  answer  to  say  that  such  evidence 
will  not  be  likely  to  gain  credit,  and  consequently  will  do  no  harm. 
Evidence  should  never  be  given  to  a  jury  which  they  are  not  at  lib- 
erty to  believe. 


it  is 

s/)en'ii/ 

of  rvi( 

laff  dm 

llio  sai 

tion  art 

The 

the  pro 

Itself,  t 

Itft  had 

MOt  be  I 

•ommit 

('ourt  t^ 

Judg( 

saying  •< 

that  he 

wa,  and 

that  he 

would  s 

Phn 
I  never 
boats  as 
saw  thre 
fell  shori 
five.     Pf 
on  the  bj 
the   bea( 
gave  t 
pass  by 
resident 
the  coui 
don't  ki 
Judge 
rule  to 
Exaini 
Attoim 
knew, 
Stanfort 
Mr. 
The  A 
trial  a  ri 
manifest( 
would  at 
TheC, 
going  to 
and  not 
the  quest 
any  othe 
if  not  yoi 


Mn.llfH)  fl   TRIAL. 


2M 


i'Iiiration> 
thoy    dil- 

w  tint    ;i 
;cn  on  till' 

why  till'- 
nco  it  l>:i~ 
c  \vitnps»«. 
sonor,  aiiti 
>ro\vi>,  Im  • 
ik  that  Ik 
('  case, 
lell,  p.  ')<>. 

,  ill  covrci- 
Aisf,  is   a- 

nnd   tliat 

us    wllCMT 

D  infliicnci 
statcniPiH. 
liino    wlieii 
f  cvidoiiC' 
by  the  \vi' 
>    snme  ac 
■ration  ari-- 
seen. 

■  courso,  he 
laractor  for 
)()cl ;  and  ii 
lit  of  Cour; 
)se  dcclara- 
etract  from 
witness   on 
CO  of  some 
itemcnt,  tlie 
hat  the  wit- 
ited  motive 

of  what  the 
ify  his  testi- 
er to  allow  a 
-.  by  the  do 
;s,  it  can  he 
to  show  tlia' 
solemn  obli- 
ich  evidence 
do  no  harm, 
•e  not  at  lib- 


it in  also  iiprret'd   by  Mr.   Stnrki*    tl.iit    such  evidence   nuiy,  Kmlir 
iiil  rirruifistdnrrs  he  admit  I  e 


spfii 


IIS  lor  instance,    in   contiiidicl  ion 


of  evidence  teiidinpT  to  show  tlia«  tlie  nceoiiiil  was  ii  fabrication  of 
htf  ilntp,  ntid  where  conse(|iieiirly  it  brcoincs  material  to  hIiow  ihnt 
the  siiiiie  aceoiint  has  been  ''ivcri,  /iij'orc  ifs  I'/ltimnfr  ilj'erf  a/iil  ojieni- 
tion  arisiiii^ J'rum  n  vlntn^i'  of  ini  "'Pstnnrr.<  nu/id  hnvf  lirtn  forisiin. 

The  Attoii.ney  GK\i;K.vr<  said  tl,;it  he  oO'ered  to  show  that  before 
the  prosecution  of  the  prisoiHT  loul  immediately  after  the  triiii^iaction 
itself,  the  witness,  l)i(»wn,  Iml  made  stutements  similar  to  those  which 
I.e  had  now  made  before  this  jury,  and  asked  the  Court  if  he  niiLrht 
not  be  permitted  to  introilnre  smli  evidence.  Are  we  secKitiir  to 
•ominit  a  felony  that  we  are  thus  headed  and  pursued  !  1  ask  the 
I'oiirt  to  protect  me. 

.Ind^rc  (IicDi.Kv. — 'I'lie  ('ourt  will  protect  yon.  If  I  am  riii-lit  in 
sayin?  when  yon  have  irivcii  allirmative  evidc'iice  a-rainst  MeLijoil, 
that  he  was  seen  loiin<rinfj  nbont,  and  exhibitiii'f  his  pistcd  at  Chippe- 
wa, and  if  I  am  now  riq[lit  in  exchidinf.'  further  evidence,  sliowiii<i: 
that  he  was  there,  and  yon  merely  seek  to  ijet  in  testimony  wliii  li 
would  sustain  Drown  ;  in  bucIi  case,  I  consider  it  would  he  admissible. 

Pldtt  Smitli's  examination  continnetl  by  the  Attoun'i;v'  GKNEtiAL. — 
I  never  heard  Drown's  truth  and  veracity  questioned.  I  saw  the 
boats  as  they  returned.  I  was  at  the  beacon  lire  spok(!n  of.  1  only 
saw  three  boats  come  to  the  cut — there  mijrht  have  been  f«Mir ;  one 
fell  short  of  the  cut,  and  came  int(»  the  creek  below.  I  did  not  see 
five.  Persons  were  continually  passinjr  and  rcpassinp:  the  sentiiuds 
on  the  bank  of  the  river.  >)ome  were  comiiifr  from  the  villaixe  to 
the  beacon  li^ht,  and  some  were  rcturniii!?  to  the  villaflfe.  Some 
gave  the  countersin^n,  and  some  did  not.  Citizens  were  allowed  to 
pass  by  the  jruard.  They  were  hailed,  and  if  they  said  they  we'e 
residents  of  the  place  they  were  allowed  to  pass.  I  believe  I  heard 
the  countersifTR,  but  I  think  1  had  forgotten  it  before  I  trot  there.  I 
don't  know  how  I  passed. 

Judge  (jRiDLEY  said  JVIr.  Sears  only  stated  that  it  was  the  general 
rule  to  demand  the  countersign. 

Examination  continued. — This  occurred  about  one  o'clock. 

Attoiiney  General. — Can  you  say  whether,  from  any  thing  you 
knew,  Alexander  McLeod  could  not  have  been  at  Mr.  Morrison's,  at 
Stanford,  between  1  and  2  o'clock  that  m.  ruing  I 

Mr.  Spencer  objected. 

The  Attorney  General  was  astonished  that  at  that  stage  of  the 
trial  a  rigorous  rule  was  insisted  on  after  such  a  liberality  had  been 
manifested  all  along  in  favor  of  the  priscmer.  He  trusted  the  Court 
would  at  once  decide  that  the  question  was  proper. 

The  Court  had  already  excluded  on  suificicnt  grounds,  questions 
going  to  elicit  the  answer  now  sought  ;  this  evidence  was  in  chief 
and  not  in  reply,  and  of  course  inadmissible.  The  Court  then  put 
the  question  thus — If  you  can  state  that  McLeod  was  not  there  from 
any  other  reason  than  that  he  was  at  Chippewa,  yon  may  answer — 
if  not  you  cannot  answer.     The  Court  then  adjourned  for  dinner. 

29 


\  .< 


\  '" 


♦ 


w 


226 


GOULD  S  REPORTER. 


TRIAL   RESUMED. 

Saturday,  2  o'clock,  P.  M. 

The  examination  of  Piatt  Smith  was  continued  by  the  Attonev 
General  who  asked  the  witness  if  any  delay  had  occurred  at  the  dis- 
embarkation ! 

Mr.  Spencer  objected. 

The  Attorney  General. — I  only  intended  impeaching  the  evidence 
of  Sears. 

Mr.  Spkncer. — Go  on  then. 

Witn'jss. — There  was  a  delay  only  of  a  very  few  minutes — I  after- 
wards fell  in  with  this  party  ;  they  stopped  at  Davis's  house,  and  some 
one  asked  if  they  should  wait  for  the  others  ;  they  did  not  wait ; 
whilst  witness  was  there  the  party  from  the  other  boats  did  not  come 

"P; 

The  Attorney  General  then  desired  to  ascertain  from  the  wit- 
ness where  the  prisoner  was  in  the  evening. 

i\lr.  Spencer. — Where  do  you  propose  to  show  he  wasl 

Attorney  General. — At  Chippewa. 

The  Court.— When  ^ 

Attorney  General. — At  sunset ;  it  is  not  at  all  cumulative  evi- 
dence. 

The  Court. — It  is  still  evidence  of  the  same  description,  connect- 
ing the  prisoner  with  the  transaction. 

The  Attorney  General. — Not  independently  of  the  other  evi- 
dence. 

The  Court  decided  the  evidence  was  inadmissible.  The  rule  was 
laid  down  in  a  late  case  at  Nisi  Prius,  Littledale  Judge,  the  decision 
in  which  case  the  court  then  read. 

The  Attorney  General  then  proposed  to  ask  the  witness  : 

Do  you  know  any  place  where  McLeod  was  not  between  1  and  8 
o'clock  on  the  morning  of  the  30th  Dec.  1837  } 

The  Court  remarked  that  that  was  substantially  the.  same  question 
as  before,  and  therefore  inadmissible. 

The  Attorney  General  then  proposed  to  ask  : 

Do  you  know  that  McLeod  was  not  at  Morrison's  at  8  o'clock  on 
the  morning  after  the  destruction  of  the  Caroline  1 

The  Court  observed  that  as  the  fact  intended  to  be  elicited  came 
within  the  rule,  it  was  not  to  be  got  at,  in  any  such  ingenious  way  as 
that. 

The  Attorney  General  would  then  ask : 

Did  you  see  the  prisoner  as  late  as  10  o'clock  at  Chippewa  or  any 
other  place  1 

The  Court  decided  that  this  question  might  be  put,  as  none  of  the 
evidence  fixed  the  time  of  McLeod's  arrival  at  Chippewa,  nor  where 
he  was  at  10  o'clock. 

The  witness  then  replied  that  he  did,  about  10  o'clock,  see  Mc- 
Leod go  frem  Davis's  across  the  bridge  down  the  Chippewa  ;  there 
might  have  been  one  person  with  McLeod  ;  he  was  going  from  the 
quarters  of  Col.  McNab ;  saw  him  on  the  Sunday  following ;  then 
saw  him  very  near  the  guard-house,  three-quarters  of  a  mile  above ; 
it  was  about  11  o'clock — did  not  know  who  they  were  with  McLeod  ; 


cannot 
Leod  a 
it  was  I 
horse. 

Cros< 
lost  m^ 
]S3u-7 
Canada 
and  can 
two  we( 
iind  was 
liis  depi 
it  was  t] 
ed,  I  fix 
triot  bus 
when  I  E 
30th  De( 
cause  th 
was  not! 
Jo/in  i 
Chippew 
when  thi 
home  ;  r 
the  bar  ; 
Exami 
am  the  h, 
was  burn 
The  A' 
for  th  ^  pi 
The  e: 
about  12 
boats  app 
returned 
ed  before 
room  at  n 
officers  n 
mess  rooi 
persons  s 
sions;  I 
voices  in 
several ; 
not  say,  t'\ 
talking  th 
The  At 
the  voice 
did  not  se 
others,  w( 
ken  that  t 
Did  no 
There  was 


,  p.  M. 

Attoney 
t  the  dis- 


cvidence 


} — I  after- 
and  some 
not  wait  ; 
not  come 

a  the  wit- 


lative  evi- 
1,  connect- 
other   evi- 

le  rule  was 
le  decision 

ess : 

en  1  and  8 

le  question 

o'clock  on 

cited  came 
ous  way  as 


ewa  or  any 

none  of  the 
nor  where 

pk,  see  Mc- 
ewa ;  there 
ig  from  the 
wing  ;  then 
nile  above ; 
^  McLeod ; 


II 


h 


MCLE  )D  S   TRIAL. 


227 


did  not   recollect   seeinor  Mc- 
s  spolcen  of  as  being  McNab ; 
he  rode  upon  a  whito 


cannot  say  whether  it  was  Gilkinso 

Leod  after  that ;  one  of  the  persons  was  spoii 

it  was  not  him  ;  it  was  a  stranger  to  witness 

horse. 

Cross-examined  by  ?ilr.  Spenckh. — I  now  live  at  Lockport ;  I  never 
lost  my  residence  there,  lliough  I  v/as  in  business  in  Canada  in 
lS3i)-7 ;  during  those  ye;irs  I  often  saw  .McLeod;  while  I  was  in 
Canada  I  soM  a  draft  for  8500  to  a  man  in  Albany  ;  it  was  protested 
and  came  back;  1  was  arrested  and  iiuprisoned,  but  it  was  paid  in 
two  weeks  after,  and  1  was  released  ;  1  was  taken  for  that  to  Niagara, 
and  was  pnt  into  jail,  but  not  by  3,IcLeod,  it  might  have  been  one  of 
his  deputies  ;  that  deputy  might  have  been  his  brother  ;  I  don't  tliink 
it  was  the  prisoner;  when  1  saw  McLeod  on  the  day  I  have  mention- 
ed, I  fix  the  time  as  after  breakfast ;  1  had  taken  no  part  in  tiie  Pa- 
triot business,  nor  in  any  secret  society ;  was  in  my  brother's  store 
when  I  saw  McLeod  at  the  bridge ;  it  was  on  the  morning  of  the 
30th  Dec.  1837 ;  it  was  on  Saturday ;  know  it  \vas  on  Saturday,  be- 
cause the  boat  was  burnt  on  Friday,  and  this  was  the  d?^''  after  j  it 
was  nothing  uncommon  for  me  to  meet  McLeod. 

Jo/m  C.  Davis  was  then  sworn,  and  deposed  that  he  resides  at 
Chippewa;  is  the  proprietor  of  "  Davis's  Tavern"  house  ;  was  there 
when  the  Caroline  was  burnt;  recollects  tiiat  time;  was  then  at 
home  ;  recollects  distinctly  the  transaction  ;  knows  tlie  prisoner  ai 
the  bar  ;  he  usually  stopped  at  witness's  house  when  in  Chippewa. 

Examined  by  the  Attop.^-ey  General. — I  reside  at  Chippewa,  and 
am  the  bar  keeper  of  Davis's  tavern  ;  I  was  there  when  the  Caroline 
was  burned  ;  I  know  the  prisoner;  he  usually  stopped  at  my  tavern. 

The  Attorney  General  repeated  the  questions  before  overruled, 
for  th  ■•  purpose  of  having  a  note  taken  of  them. 

The  examination  was  then  resumed.  I  retired  to  bed  that  night 
about  12  or  1  o'clock  ;  I  w  is  at  the  mouth  of  the  creek  when  the 
boats  approached  tlie  shore ;  the  men  commenced  hurraing  and  1 
returned  home  before  they  had  all  landed;  I  cannot  say  I  had  retir- 
ed before  the  party  came  to  my  house  ;  1  did  not  go  into  the  bar 
room  at  all  that  night  after  the  expedition  ;  quite  a  number  of  the 
officers  messed  at  my  house  ;  my  bed  room  is  separated  from  their 
mess  room  only  by  a  tiiin  partition  of  lath  and  plaster  ;  I  can  hear 
persons  speaking  from  one  room  into  the  other  on  particular  occa- 
sions; I  have  heard  it  repeatedly;  I  imagine  1  might  have  iieard 
voices  in  that  room  that  ni:,ht  ;  1  had  an  idea  I  knew  the  voices  of 
several ;  there  was  a  good  deal  of  loud  talking  that  night ;  I  could 
not  say,  from  the  language  I  heard  there  that  night,  that  the  persons 
talking  there  had  been  of  the  party. 

The  Attorney  General  then  asked  the  witness  if  he  did  not  hear 
the  voice  of  McLeod  in  that  mess  room,  and  afterwards,  whether  he 
did  not  see  McLeod  the  next  morning.  These  questions,  like  the 
others,  were  put  to  save  the  right  of  parties,  and  to  have  a  note  ta- 
ken that  they  had  been  offered. 

Did  not  see  any  of  the  party  that  night  drinking  except  one. 
There  was  a  bed  took  out  of  his  house  that  night,  and  there  was  some 


$ 


r 


M 


:      Hi" 


,■*  ■ 


•'is,,.. 


288 


GOULD  S    REPORTER. 


[it 


talk  about  that.     Waked  about  sunrise.     Before  he  got  out  of  bed 
saw  some  person. 

The  Attounky  Genkral.     Who  1 

Mr.  Spenckii  objected. 

The  Court  overruled  the  question  upon  the  reasons  already 
stated. 

Attorney  General — Do  you  know  Mr.  Park  1 

Mr.  Spencer  objected  to  the  question. 

Attroney  General — Did  you  see  McLeod  the  day  before  the 
destruction  of  the  Caroline  1 

Mr.  Spencer  objected. 

The  C) ''^T  admitted  tlie  question. 

Witness  ■?he  prisoiiev  went  to  bed  in  my  house  that  afternoon  ; 
he  got  up  in  the  evening  ;  saw  him  about  eight  or  nine  o'clock  ;  he 
ordered  his  horse  then,  and  said  he  was  going  to  Niagara.  A  gen- 
tleman came  in  and  asked  for  him  afterwards;  it  was  not  Mr.  Press. 

P/iilo  Smith  was  then  called  and  sworn. — He  deposed  that  he 
resided  at  Chippewa  when  , the  Caroline  w.is  burnt  ;  recollects  the 
occurrence.  Was  there  part  of  the  next  day.  Was  there  about 
eight  o'clock  next  day.      Knew  McLeod  well. 

Mr.  Spencer — What  do  you  propose  to  do  ? 

Mr.  Jenkins      Does  that  come  within  the  rule  % 

The  Court.     Yes. 

Mr.  Jenkins  continued.  Are  you  acquainted  with  Samuel  Drown  \ 
Yes.  What's  his  character  for  veracity  !  Never  have  heard  it  ques- 
tioned. 

Mr.  Spencer.  Did  Drown  run  away  \  Well — no  I  believe  not. 
How  did  he  get  away  ]  Oh,  on  account  of  some  mob  or  other.  Do 
you  belong  to  a  secret  lodge  I  or  ever  did  \  Well,  I  once  attended 
one,  two  years  ago.     Mr.  Spencer.     That's  all,  sir. 

By  the  Attorney  General.  Drown  was  bar-keeper  for  me. 
There  was  some  censure  thrown  upon  him  for  striking  some  one. 
The  soldiers  came  upon  him,  and  he  had  to  escape  for  his  safety. 

James  M.  Dyke,  examined  by  the  Attorney  General.  Reside  at 
Niagara  Falls,  on  the  American  side.  I  am  acquainted  with  the 
prisoner.  I  saw  him  on  the  morning  after  the  patriots  left  the  Island 
at    Stanford. 

The  Court  did  not  see  how  the  Attorney  General  could  go  on  to 
contradict  the  statements  of  the  witness,  which  he  (the  Attorney 
General)  had  himself  introduced. 

Cross-examined  by  Mr.  Spencer.  Went  to  the  Falls  of  Niagara 
the  morning  after  the  destruction  of  the  Caroline.  Went  to  the 
Falls  the  day  before,  and  was  there  the  night  the  boat  was  burnt. 
Had  once  said  he  met  McLeod  going  to  thr  Falls.  Was  mistaken  in 
that,  but  would  have  sworn  to  it  then.  Would  not  swear  to  it  now, 
the  circumstance  of  recollecting  his  having  seen  a  flag  raised  on 
Navy  Island  enabled  him  to  correct  his  mistake. 

Timothy  Wheaton  sworn.  Examined  by  Mr.  Haavley.  The  coun- 
sel for  the  prisoner  stated  his  objection  to  this  evidence,  inasmuch 
as  he  was  one  of  the  witnesses  called  before  the  prosecution  rested 


agara. 


MCLEOD'S   TRIAL. 


229 


and    did  not  appear,  and  there  was  no  provision  that   his  testimony 
should  be  admitted  at  any  subsequent  period  of  the  trial. 

The  witness  deposed  that  he  resided  in  Canada  in  IS.'JS.  Lives  now 
in  Chemung  county.  Left  Canada  in  the  fall  of  1838,  Recollects 
beinsr  then  in  the  town  of  Niagara.  Was  in  Niagara  the  last  of 
October,  or  the  first  of  November,  1838.  Saw  the  prisoner  there. 
Conversed  with  him.  Was  standing  near  the  ferry.  Passed  the  time 
of  day  with  McLeod,  and  said  that  "  the  poor  fellows,  (moaning  the 
sentinels)  had  a  hard  time  of  it."  Conversed  about  the  dillicultics 
in  Canada  before  that,  and  then  asked  him  iiow  many  had  boon  killed 
on  the  Canada  shore,  by  the  Navy  Islanders  \  Ho  replied  two,  if 
witness  rightly  remembered.  He  said  they  never  would  have  the 
Caroline  to  assist  them  again,  if  they  got  on  to  the  Island.  Witness 
then  said  he  understood  she  had  been  destroyed,  and  the  prisoner 
said  she  had.  He,  the  prisoner,  said  he  was  the  second  or  third 
man  that  boarded  her.  He  was  going  on  to  say,  that  he  came  near 
being  killed.  Then  some  one  came  up,  and  said,  "  McLeod,  come 
here  for  a  moment."  And  McLeod,  witness  thiidis,  said,  "  Hold  on  a 
moment,  Herron  !"  That's  all  the  conversation  witness  had  with 
McLeod,  for  he  started  off  then.  Witness  had  never  seen  McLeod 
before.      Lived  then  at    Whitby*,  about,   sixty-five  miles  from  Ni- 


agara. 


Cross-examined  by  Mr.  Spencer.  Knew  it  was  McLeod,  because 
the  other  man  called  him  McLeod.  He  said,  "cOme  here  a  minute, 
I  want  to  speak  to  you."  Didn't  hear  any  thing  more  said.  Didn't 
see  McLeod  after  that  till  he  saw  him  here  on  trial.  Recognizes 
McLeod  now.  He  looks  some  paler  than  he  did.  Witness  came 
here  because  he  was  subpn;naed  about  the  22d  of  last  month.  Did 
not  know  who  subpojnaed  him.  Understood  the  man  was  from 
Elmira.  Don't  know  how  he  learned  that  vitness  knew  any  thing 
about  it.  Wrote  a  letter,  either  to  William  Lyon  Mackenzie,  or 
John  MontgOTuery,  about  what  he  knew.  Montgomery  lives  at 
Rochester.  This  was  about  a  year  ago.  Witness  then  lived  in 
Chemung  county.  Don't  recollect,  particularly,  what  he  wrote. 
Has  forgotten  it.  Witness  read  in  the  papers,  that  such  a  man  was 
taken.  Wrote  to  Mackenzie  because  he  had  acquaintance  with  him. 
First  saw  him  in  Toronto. 

Witness  belongs  to  one  of  the  patriot  lodges.  Joined  in  the  fall 
of  '38.  Couldn't  tell  the  time  precisely.  It  was  in  Canada.  Before 
he  had  the  interview  with  McLeod,  some  of  the  witness's  acquaint- 
ance had  been  taken  up  for  stealing  harness.  Has  had  some  inter- 
course with  members  of  patriot  lodges.  Couldn't  describe  the  ferry. 
No  one  was  present  at  the  conversation  witness  had  with  McLeod. 
Herron  was  a  pretty  good  sized  man.  Is  not  sure  he  could  recog- 
nize him.     It  was  about  twenty  rods  from  the  ferry  to  Niagara. 

Mr.  SpenCer.     I  believe  it  is  nearly  a  mile.     You  may  go,  sir. 

Wm.  Dejield,  examined  by  the  Attorney  General — I  reside  at 
Queenston,  District  of  Niagara,  Upper  Canada.  I  know  Mr.  and  Mrs. 
Morrison.  I  have  not  been  at  their  house  more  than  three  times.  I 
saw  Mr.  Morrison  on  this  side,  at  Lewiston,  in  November,  184)0.    I 


•  ,.^.' 
'^^^J: 


.M 


I 


(I  'I'S 


m 


i:-'-': 


1. " 

M 

H  . 

III] 

230 


GOULD  S   REPORTER. 


I  had  then  some  conversation  with  him,  he  siiid  to  me  in  convcrsii- 
lion  at  his  own  house  lliat  he  hoped  the  American  authorities  would 
^et  hold  of -Mr.  McLeod,  and  punish  him  fur  his  participation  in  the 
burnin<T  of  the  Caroline,  that  was  in  September,  183!);  about  that 
time  they  were  relating  to  me  thai  McLeod  had  seduced  a  daughter 
of  Mr.  Morrison's  from  her  husband,  and  that  Mr.  Taylor,  the  hus- 
band, who  was  a  wealthy  merchant  from  the  Southern  States,  was 
gone  in  pursuit  of  them  to  Torronto.  I  asked  him,  when  I  saw  him 
in  1810,  how  he  could  prove  an  alibi  ?  And  he  said  that  he  thought 
that  Mr.  McLeod  stopped  at  his  place  that  night ;  I  asked  him  if  he 
was  sure  of  that  ?  He  said  he  was  not;  but  McLeod  was  one  of  Her 
Majesty's  subjects,  and  must  be  protected  at  any  risk. 

Cross-examined  by  Mr.  SpE.NCiiR — I  never  aided  the  Patriots  di- 
rectly, I  was  at  Detroit  when  they  crossed  to  Windsor.  1  was 
on  Navy  Island  when  the  Patriots  were  there.  I  was  there  eight 
days.  McKenzie  took  me  as  a  prisoner,  and  kept  me  till  the  evacu- 
ation. He  kept  me  at  their  head  quarters.  General  Van  Rensselaer 
was  quartered  there.  I  was  permitted  to  go  out  sometimes  by  the 
permission  of  the  officers.  1  saw  the  men  on  parade,  and  counted 
■iitif  rank  and  file  on  the  Island  besides  the  guards  and  officers.  I  am 
a  school  teacher.  Taught  school 'near  Rochester  last  winter  and 
spring.  I  did  not  teach  school  on  Navy  Island.  They  knew  rather 
more  than  I  did. 

By  the  Attorney  General — I  am  a  native  of  Canada. 

Mr,  Si'ENCER — And  no  great  friend  to  it,  are  you '? 

Witness — Not  particularly. 

John,  B.  C kubbuck,  was  then  called  for  the  purpose  of  proving  that 
there  were  no  fire-arms  on  board  of  the  Caroline,  and  to  impeach  the 
evidence  of  the  prisoner's  witnesses,  who  swore  to  the  contrary. 

Court — It  is  already  proved  that  they  were  unarmed.  Is  it  part 
of  your  case,  Mr.  Si'Encer,  that  the  attacking  party  was  fired  on  \ 

Mr.  Spencer — No,  your  honor ;  1  object,  however,  in  addition,  that 
this  is  cumulative  evidence.  They  attempt  now,  to  produce  new  evi- 
dence. The  learned  gentlemen  contended  that  the  case' for  the  pro- 
secution had  been  shrouded  in  gloom  contrary  to  all  precedent. 

Mr.  Jenkins — Did  the  learned  gentleman  not  give  the  editor  of  the 
Observer  a  list  of  the  witnesses  for  the  prosecution! 

Mr.  Spencer — I  took  the  names  in  pencel  as  they  were  called  by 
the  clerk  on  the  first  day. 

The  Attorney  General  contended  that  it  would  not  have  been 
prudent  at  one  time  to  disclose  the  witnesses.  But  subsequently,  in 
the  spirit  of  liberality,  the  names  were  given  in  exchange  for  those 
of  the  prisoner's  witnesses.  And  it  was  extraordinary  that  counsel, 
after  entrapping  him  (the  Attorney  General)  should  discover  so  little 
of  generosity  and  magnanimity. 

Mr.  Spencer  said  that  Mr.  Wood  gave  merely  the  names,  without 
residences,  or  the  subjects  of  their  testimony,  and  very  few  of  them 
had  been  produced  on  the  trial. 

The  Court  hoped  the  acerbities  exhibited  by  gentlemen  would  all 
be  smoothed  down  before  another  week,  and  wished  to  know  the  At- 
torney General's  object  in  producing  this  witness. 


"rm 


MCLEOD  S   TRIAL. 


231 


^^WBipip 

Wk 
4 

I'll 
1 

convcrsii- 
ics  would 
io»i  in  the 
ibout  that 
I  daughter 
r,  the  hus- 
tates,  was 
I  saw  him 
e  thought 
him  if  he 
)ne  of  Her 

'atriots  di- 
or.  1  was 
liere  eight 
the  evacu- 
Rensselaer 
ines  by  the 
id  counted 
;ers.  I  am 
printer  and 
new  rather 


roving  that 
npeach  the 
itrary. 

Is  it  part 
ired  on  1 
dition,  that 
ce  new  evi- 
or  the  pro- 
lent, 
litor  of  the 

;  called  by 

have  been 
quently,  in 
e  for  those 
lat  counsel, 
ver  so  little 

es,  without 
e\v  of  them 

n  would  all 
low  the  At- 


The  AxTonNF.Y  Genf.rat.— To  prove  the  fiict  iif  tlicir  being  unarmed  on  the  Caroline. 
Tiie  CoitRT  exchick'd  the  oviilpiici'  iis  niirniiliuivc. 

Mr.  Spkncer  tlieii  read  tlio  tcslimoiiy  of  Di'lii-id  lieforn  ihn  Justice  in  1.S40,  in  which  he 
said  he  never  conversed  with  Mr.  Morrison  on  the  hiiriiins;  of  tile  Caroline,  until  tht  night 
before  the  exainiuiition.     'i'hat  is,  the  pxaiiiinalion  Indiire  said  Justici.',   in    IMO. 

Dr.  Joseph  Hamilton  was  next  culled  to  prove  thai  DeKold  was  not  worthy  of  belief 
and  that  Captain  Morrison  was. 

Witness — I  have  known  Defi"ld  since  he  was  a  hoy.  He  had  the  reputation  of  being  u 
qiiicij,  smart  boy,  but  his  reputation  for  trutli  and  veracity  is  not  a;ood.  I  have  known 
L.i-iitenant  Morrison  for  several  years — his  character  lor  trulii  and  honesty  is  ^ood. 

Cross-examined  by  the  Attornkv  (iKNF.nM, — 1  live  in  (iueonston.  lam  a  native  of 
Canada.  I  am  not  an  associate  of  Mr.  Morrison's,  but  I  liave  been  in  tiie  habit  of  doina; 
business  with  him.  He  resides  on  bis  incnine.  The  business  wo  do  logetlier  is  the  salu 
to  me  of  bills  of  exchange  for  his  pay.  Witness  resides  about  four  miles  from  Morrison's 
house.  Had  never  heard  Captain  .^Iorrison■s  character  caili'd  in  questimi  for  iiilegrily  ; 
had  for  sobriety;  never  heard  any  thing  else  to  his  disadvaniage.  Dctiold  has  always 
lived  in  witness's  vicinity.  Can  recoiled  a  jiiibllc  instance  in  wliich  his  veracity  was 
questioned.  That  was  about  his  aflldavit  at  Lewistou.  That  was  not  the  first  instance 
but  it  gave  rise  to  a  conversation  abiuit  his  cliaracter  I'or  truth. 

By  the  Court — Witness  is  sufliciently  atquaiuted  with  the  persons  associated  with 
Captain  Morrison  to  know  liis  reputation  and  standing.  * 

Defield  was  a  sergeant  in  the  militia  ;  he  was  not  appointed  as  a  lieutenant  ;  saw  hini 
on  duty  as  a  sergeant  before  he  deserted  to  Navy  Island  ;  knows  that  from  atlidavits,  not 
from  personal  knowledge,  of  course,  as  he  did  not  follow  him  ;  witness  is  a  broilier  of  the 
late  Sheriff  Hamilton  ;  prisoner  was  his  deputy  ;  does  not  know  that  prisoner  is  liable  to 
civil  or  criminal  suits  growing  out  of  the  conneciion  ;  knows  nothing  of  prisoner  being  call- 
ed on  by  Sheriff  Hamilton  to  disavow  connection  with  the  disafl'ected  party  in  Canada. 

IJy  Mr.  SpF.NCER. — I  am  President  of  a  Hank,  and  in  that  way  negociate  bills  for 
Capt.  Morrison.  Capt.  Morrison  has  been  perfectly  sober  since  he  was  at  Lewision  as  a 
witness — ho  was  intoxicated  then — has  not  been  so  since,  to  witness's  knowledge. 

John  Macomber  examined  by  the  Attornkv  (If-nfrai. — I  reside  in  J'arinington  ;  I  am 
acquainted  with  Mr.  Drown  ;  I  know  nothing  against  his  character  for  truth  and  veracity  ; 
I  live  about  five  miles  from  Mr.  Drown  ;  I  know  nothing  as  to  the  estimate  of  his  charac- 
ter in  the  neighborhood  where  he  lives. 

Cross-examined  by  Mr.  Spf.ncer. — Witness  is  twenty-one  years  old,  was  not  subpa-- 
naed  here,  came  on  a  visit  to  his  brother  ;  has  seen  Drown  often',  never  heard  his  character 
for  truth  and  veracity  questioned. 

Joseph  Center  was  then  recalled, and  deposed  that  he  was  the  agent  who  attended  the 
execution  of  the  Canadian  Commissions;  was  present  at  the  taking  of  Harris'  evidence  ; 
he  was  prompted  by  the  Commissioners  ;  don't  recollect  more  than  one  instance — that 
was  in  reference  to  the  number  of  persons  on  the  bank — and  one  of  the  Commissioners 
stated  on  that  point  what  has  been  stated  by  a  former  witness — no  direct  reference  was 
made — however — the  Commissioner  refused  to  take  dnwn  the  witness's  answers  to  the 
thirteenth  interrogatory — as  to  what  jiart  he  had  taken  in  tlie  destruction  ol  the  Caroline 
— he  said  that  he  was  the  last  man  that  left  her — that  be  set  her  on  lire — throwing  two  car- 
cases into  her  ;  and  the  Commissioners  refused  to  put  his  first  answer  in  their  minutes. 

The  Attorney  General  proposed  to  show  by  lliis  witness  that  the  conduct  of  the 
Commissioners  had  been  irregular  in  some  jioiiits. 

The  Court  said  if  so,  the  Attorney  General  could  take  the  matter  before  the  Supreme 
Court,  by  motion  to  set  aside  the  depositions. 

Andreir  RohinMii  was  then  called  by  the  .\ttornky  Gkneraf,  for  the  purpose  of  testi- 
fying as  to  the  character  of  Defield — knew  him  for  a  number  of  years — never  knew  any- 
thing against  his  truth  and  veracity. 

Cross-exi^mined  by  Mr.  Spencer. — Witness  is  the  person  who  preferred  the  complaint 
against  McLeod — had  Defield  summoned  to  testify  against  Morrison — might  have  told 
some  one  to  go  and  talk  to  Morrison — don't  recollect. 

Jajiies  Af.  Dyke,  recalled— never  heard  Defield's  character  for  veracity  questioned. 

Cross-examined. — Is  a  frontier  man— has  lived  all  along  tlie  frontier,  at  Niagara,  at 
Queenston — and  at  the  Falls — was  a  stage-ageni — not  exactly  "  a  runner" — had  charge  of 
the  line — was  arrested  by  Mr.  McLeod  in  Canada  and  allowed  to  go  without  bail. 

The  Court.— Mr.  Spencer,  have  you  any  other  evidence  ? 

Mr.  Spencer. — No,  your  Honor. 

The  Court  then  admonished  the  Jury  of  their  duty  during  the  Sabbath,  when,  unpleas- 
ant as  it  would  be,  they  must  remain  together. 

Mr.  Mott  one  of  the  Jurors  was  allowed  by  consent  of  counsel  to  visit,  under  charge  of 
a  constable,  a  brother  lying  at  the  point  of  death. 

Another  Juror  asked  the  privilege  of  absence  in  the  same  way  ;  which  was  denied,  as  no 
such  cause  for  his  separation  existed  as  in  the  other  case. 

Another  Juror  asked  if  the  Jurors  could  go  to  meeting. 

Court. — Yes — certainly,  go  in  a  body,  sit  together  and  be  attended  by  a  constable 

A  constable  was  then  sworn  to  attend  Mr.  Mott  during  his  temporary  separation  from 
his  fellow  Jurors.  The  other  members  of  the  Jury  were  then  given  in  charge  of  two  con- 
stables and  retired ;  and  the  Court  adjourned  till  Monday  morning. 


1 

J 


■i 


If 


■I  ■ 


232 


GOULD  S   K£PORT£R. 


MR.  Bradley's  addukss  to  the  jcry. 


May  it  please  tlic  Court : 

Gentlemen  of  the  Jury:  This  cause,  which,  more  than  any  other 
ever  brouglit  buforo  a  jury,  lias  involved  interests  higher  than  those  of  in- 
dividuals— disturbed  the  tranquillity  of  the  country  and  endangered  the 
peace  of  nations,  now  approuciies  its  close.  After  a  year  of  intense  ex- 
citement, breaking  out  in  popular  tumult,  giving  origin  to  high  Icgisla- 
tive  debute,  and  angry  discussion  between  governments,  the  trial  has 
come,  and  the  testimony  is  ended.  To  the  prisoner,  whose  life  and  death 
have  been  in  the  issue,  it  is  closed.  To  this  country,  too,  whose  repose 
this  cause  has  shaken,  whose  honor  it  lias  involved,  and  whose  armies  and 
navies  it  lias  threatened  to  call  ibrth  to  glory  or  disgrace,  it  has  likewise 
closed.  To  amjther  nation,  also,  it  has  closed,  wliose  subject  the  prisoner 
is;  whose  olhce,  his  imputed  otFence  is  to  have  obeyed;  a  nation  which 
avows  the  act  charged  upon  him  as  a  crime  to  have  been  a  duty,  and 
stands  ready  to  vindicate  the  faith  plighted  by  all  governments,  of  protec- 
tion to  be  given  for  obedience  reiidcired,  by  the  resources  of  an  empire  on 
whose  dominions  the  sun  never  sets. 

Knowing  the  immense  interests  at  stake,  interests  not  local  or  partial, 
but  national ;  knowing  the  mighty  preparations  made  to  ensure  a  success- 
ful prosecution,  and  hearing  the  anticipated  triumph  which  has  been  pealed 
through  the  land  by  those  in  feeling  and  motive  arrayed  against  us,  I  now 
confess  to  you,  that,  a  week  ago,  I  sat  down  to  the  trial  with  a  sinking 
heart,  lest  there  might  come  an  adverse  verdict.  But  that  hour  has  long 
since  passed,  those  feelings  long  since  subsided.  Notwithstanding  the  great 
array  of  witnesses,  notwithstanding  the  zeal  and  energy  which  have  marked 
the  case  for  the  people  from  its  commencement  to  the  end,  a  zeal  which 
nothing  has  yet  occurred  to  cool,  an  energy  which  hardly  law  itself  was 
of  force  to  baflle,  I  say  to  you  again,  that  1  feel  neither  a  sinking  heart 
nor  the  slightest  anxiety  as  to  the  result.  With  the  signal  failure  of  the 
prosecution  to  establish  a  case  of  guilt,  all  fear,  all  solicitude  has  disap- 
peared. The  defence  still  rests  on  a  foundation  which .  no  skill  can 
strengthen,  no  want  of  it  impair — the  foundation  of  unquestionable  in- 
nocence. 

It  has  been  often  said  in  your  presence,  said  by  the  counsel  for  the  peo- 
ple, said  by  the  court,  and  we  now  say  that  the  simple  question  for  you  to 
try  is  the  fact  of  the  prisoner's  presence  at  Schlosser  when  the  Caroline 
was  burnt,  aiding  and  abetting  that  enterp/ise.  This  is  the  sole  inquiry ; 
this  the  only  issue.  All  evidence  bearing  upon  this  you  will  regard;  all 
not  bearing  upon  it,  or  throwing  light  upon  the  character,  motives,  and 
ability  of  the  witnesses,  you  will,  of  course,  leave  out  of  view. 

Now,  it  is  a  principle  of  law,  with  which  you  are  doubtless  all  familiar, 
that  in  criminal  cases,  even  the  slightest  and  most  unimportant,  every  doubt 
goes  to  the  benefit  of  the  accused.  Preponderance  against  him  is  not 
enough  to  convict ;  proof  must  be  full ;  it  must  be  conclusive  ;  it  must  ex- 
clude all  reasonable  question,  annihilate  all  reasonable  doubt.  On  proof 
.short  of  this,  the  only  verdict  must  be,  not  guilty. 

Let  us  look  now  at  the  circumstances  of  the  case  ;  let  us  see  how  near 
the  prosecution  has  approached  to  this  clearness,  this  conclusiveness  of 


any  other 
lose  of  in- 
igercd  the 
iitensc  cx- 
'h  Ifgisla- 
Q  trial  has 
I  and  death 
osc  repose 
armies  and 
IS  likewise 
ic   prisoner 
ition  wliich 
L  duty,  and 
,  of  protcc- 
1  empire  on 

or  partial, 
3  a  success- 
been  pealed 
3t  us,  I  now 
h  a  sinking 
iir  has  long 
ng  the  great 
ave  marked 

zeal  which 
V  itself  was 
iking  heart 
ilure  of  the 

has  disap- 

skill  can 

tionable  in- 

for  the  peo- 
1  for  you  to 
he  Caroline 
ale  inquiiy ; 
regard ;  all 
notives,  and 

all  familiar, 

every  doubt 

him  is  not 

it  must  ex- 

On  proof 

se  how  near 
usiveness  of 


MCLEOU'S   TRIAL 


233 


guilt.  First  comes  the  legal  presumption  of  innocence,  excluding  all  other 
presumptions,  yielding  to  nothing  but  proof;  nor  even  to  that,  unless  it  be 
of  strength  to  render  mistake  absurd  and  want  of  guilt  incredible.  In  the 
next  place  we  have  the  testimony  of  those  wlio  avowedly  were  in  the  ex- 
pedition, obtained  in  the  only  way  in  which  evidence  in  a  foreign  country 
can  be  taken,  by  commission.  C4entlemen,  what  stronger,  what  higher 
proof  need  we,  can  we  have  ?  In  whichsoever  boat  he  went,  \m  was,  if  he 
went  at  all,  one  of  nine  men,  crowded  into  a  narrow  compass,  men  who 
were  hours  together,  who  sat  at  each  other's  side,  saw  eaoii  other's  faces, 
hoard  each  other's  voices,  touciied  each  other's  hands  and  feet.  VV^hy  is 
it  that  ho  was  not  seen,  recognized,  remembered '?  Yet  you  have  the  clear, 
direct  oath  made  by  a  portion  of  every  crew  that  he  was  not  in  their  midst. 
Bear  in  mind,  gentlemen,  the  story  of  the  prosecution  ;  for  I  nuw  bold  the 
Attorney-Gemiral  to  his  own  character  of  the  prisoner.  He  tells  you  that 
the  prisoner,  beyond  a  general  feeling  to  re|)cl  the  invasion,  took  a  deep, 
a  special  interest  in  the  Caroline  ;  went  to  Butlalo  to  watch  her  move- 
ments, ascertained  her  desirrns,  returned  to  Ciiippewa  and  made  report, 
circumnavigated  the  island  lo  detect  her  arrival,  and  set  on  foot  the  expe- 
dition which  ended  in  her  destruction.  If  this  be  so,  if  his  agency  have 
been  so  active,  his  vigilance  so  sleepless,  his  influence  in  bringing  about 
her  doom  so  great,  how  is  it  that,  known  as  he  must  have  been  to  all,  none 
were  aware  of  his  presence  ?  He  was  the  life  and  soul  of  the  enterprise. 
By  what  miracle  is  it,  then,  that  his  companions  deny  his  agency,  disclaim 
his  fellowship  ?  Has  not  the  prisoner  some  shield  other  than  the  legal 
presumption  of  innocence  ? 

Undoubtedly,  gentlemen,  testimony  taken  by  commission  is  inferior  to 
oral.  You  see  not  the  witnesses,  hear  them  not ;  but  is  their  evidence, 
therefore,  of  no  weight  ?  By  depositions  in  writing  alone,  all  the  immense 
litigations  in  chancery  are  determined  ;  and  though  such  proof  be  suflicient 
to  enable  a  defendant  to  guard  his  property,  shall  it  be  of  no  avail  in  pro- 
tection of  his  life  ? 

Throughout  the  trial,  the  learned  Attorney-General  has  employed  him- 
self, perhaps  subserved  the  necessities  of  his  cause,  with  bitter  invective 
against  the  commissioners ;  all  have  seen  with  how  little  truth  or  justice. 
The  strength  of  virtue  is  learned  by  its  trial  ;  tlie  commissions  were  nearly 
a  fortnight  in  execution  ;  vigilant  counsel  in  behalf  of  the  people  was  pre- 
sent ;  counsel  not  indifferent  to  the  result  of  this  trial ;  counsel  watchful  for 
misconduct,  jealous  of  partiality,  and  not  unlikely  to  be  even  restive  under 
equal  justice.  Now,  what  misconduct  has  been  detected  ?  what  partiality  ? 
what  abuse  ?  Simply  that,  whereas  Harris  stated  he  had  cast  into  the  ves- 
sel two  ignited  carcasses,*  the  commissioners  returncu  that  he  "  took  a  very 
active  part  in  her  destruction !"  This  variation,  having  not  the  weight  of 
a  feather  in  the  cause,  aiding  njbody,  harming  nobody,  is  all,  absolutely  all 
that  the  scrutiny  of  this  most  suspicious  of  agents  could  detect  in  the  an- 
swers to  some  thousand  inquiries  fit  to  be  talked  about,  told  of,  or  won- 
dered  at!  Gentlemen,  what  higher  proof  of  good  conduct  in  the  commis- 
sioners, proof  that  silences  question,  destroys  the  possibility  of  cavil,  could 
be  furnished  ?  An  eagerness  to  detect  faults  so  signally  baffled  by  their 
being  none  to  detect,  proves  the  depositions  not  only  to  have  been  well 
taken,  but  taken  in  a  manner  above  reproach  and  beyond  exception. 

*  An  instrument  of  combustion  used  in  war — a  species  of  rocket. 

30 


Stj 


r     'h 

1  ■ 

, ,  .♦ 

i 
■         ,  i. 

r 


-tA 


1 

ifn. 

"*  ■ 

i        ■  ' 

1              biiMi: 

234 


GOULD  a    REl'ORTER. 


■      -'I 


One  thinjf,  gciUlciuon,  plnjise  to  bciir  in  niiiicl.  The  case  against  tho 
prisoner  is  Itj'sud  upon  coiifl.'saions.  Tliu  Attornuy-Gcneial  litis  suit!  lliat 
lie  lias  openly  proelaimed  his  participation  in  tlio  olH-nce,  from  the  time  it 
was  committed  up  to  the  ibllowing  autumn — a  period  of  ten  or  eleven 
months.  It  was  by  order  of  Col.  McNab,  that  the  expedition  was  under- 
taken ;  and  yet,  to  him,  McLood  never  admitted  any  agency  in  the  trans, 
action.  Now,  gentlemen,  how  did  it,  how  could  it  occur  that  he  was  there 
engaged  ?  For  do  not  forget  that,  fresh  from  the  enterprise,  a  list  was 
made  of  all  who  had  shared  its  dangers  and  transmitted  to  the  Governor, 
but  the  prisoner's  name  was  not  returned.  If  the  prisoner  has  proclaimed 
it  on  all  occasions — at  Chippewa,  at  the  Falls,  at  Niagara — how  is  it  that 
he  has  made  no  admission  to  his  acquaintance  1  If  to  Quinby,  Myers,  and 
Wheaton,  why  not  to  McNab — to  him  who,  of  all  others,  could  !iave 
given  him  ellectiml  credit,  transmitted  his  name  to  the  Governor,  and  pro- 
cured for  him  the  reward  of  an  enterprize  which,  the  Attorney-General 
says,  he  was  tne  earliest  to  plan,  and  the  most  efficient  to  execute. 

But  it  has  been  said,  and  doubtless  will  be  again,  that  the  witnesses 
whose  depositions  have  been  read  are  accomplices,  and  therefore  of  im- 
peached credit.  Whether  the  fact  of  having  been  an  accomplice  be  aU 
ways  an  impeachment  or  not,  I  submit,  depends  very  much  on  the  circum- 
stances  in  which  he  swears.  If  he  come  upon  the  stand  and  depose 
against  his  companions,  there  is  an  implied  promise  of  pardon.  That  is 
the  motive  which  goes  in  impeachment  of  his  credit.  If  he  convict  his 
associate,  he  is  himself  placed  beyond  punishment.  If  it  be  in  a  capital 
case,  then  he  is  bribed  to  perjury  by  the  love  of  life  ;  and,  therefore,  he 
is  interested ;  he  is  under  an  impulse  more  resistless  than  any,  than  all 
pecuniary  considerations,  can  give.  But  see  whether  this  motive  exist 
here.  The  men  who  have  thus  deposed  were  not  known  to  have  been  en- 
gaged in  the  enterprize.  Had  accident,  or  any  other  cause,  cast  them 
among  us,  their  agency  might  have  remained  undiscovered,  and  themselves 
been  free  from  danger,  by  being  safe  from  detection.  Now,  however, 
they  arc  just  to  the  prisoner  at  the  expense  of  safety.  They  swear  to 
their  own  hurt.  Their  testimony  may  not  only  lead  to  their  own  detec- 
tion, but  be  conclusive  evidence  of  guilt  on  their  trial — making  conviction 
sure  and  acquittal  impossible.  Every  motive  would  induce  them  to  si- 
lence. They  swear  against  their  interest,  and,  on  every  principle  of  law, 
are  entitled  to  full  faith  and  credit. 

But,  gentlemen,  allow  me  to  look  over  the  histoiy  of  this  case,  and  see 
whether  the  motives  which  led  these  men  to  Schlosser  be  such  as  to  de- 
prive them  of  all  credit — of  all  belief  with  an  American  jury.  It  is  well 
known  to  you — indeed  it  has  been  stated  in  almost  every  sentence  of  testi- 
mony given  in  the  cause — that  it  had  its  origin  in  high  national  questions. 
Throughout  both  the  Canadas  discontent,  deep-seated,  had  prevailed : 
whether  the  cause  was  right  or  wrong,  is  not  for  us  to  determine.  With 
that,  on  this  occasion,  we  have  nothing  to  do.  Resort  was  had  to  arms, 
but  with  no  success  to  the  insurgents.  After  the  failure  of  the  movement 
on  Toronto,  peace  was  restored.  Of  the  insurgents,  a  few  fled  to  the 
United  States,  and,  after  a  fortnight,  returned  with  such  recruits  as  could 
De  obtained,  to  Navy  Island.  Their  object  was  war  ;  and  upon  the  char- 
acter of  this  state  of  society,  some  little  light  is  thrown  by  the  testimony 
already  in  the  cause.  How  furious  and  bloody  it  must  ever  be,  you  can 
imagine  from  the  transactions  at  Schlosser,  and  but  faintly  imagine  ;  for, 


do  agui 


ii   .., 


MCLEOD  S  TRIAL. 


235 


igainst  tho 
is  suid  that 
tin;  time  it 

or  cloven 
was  under- 
1  tlio  trans. 
3  was  there 
,  a  list  was 
;  Governor, 
proelainicd 
)w  is  it  that 

Myers,  and 
could  have 
)r,  and  pro- 
ley-General 
:ute. 

e  witnesses 
jfore  of  im- 
iplice  be  al- 
the  circum- 
and  depose 
n.     That  is 

convict  his 
in  a  capital 
herelbre,  he 
ny,  than  all 
motive  exist 
Lve  been  en- 
!,  cast  them 
1  themselves 
kV,  however, 
ey  swear  to 

own  detec- 
g  conviction 

tliera  to  si- 
jiple  of  law, 

;ase,  and  see 
ch  as  to  de- 
.  It  is  well 
ince  of  testi- 
al  questions. 
\  prevailed : 
nine.  With 
had  to  arms, 
le  movement 
r  fled  to  the 
uhs  as  could 
fon  the  char- 
he  testimony 
■  be,  you  can 
nagine  ;  for, 


i»f  the  accumulated  atrocities  of  a  wholo  campaign,  to  what  part  would 
this  little  aJliiir,  horrid  us  it  seems  in  the  detail,  he.  e<|ual  ? 

Over  all  the  province  uncertainty  and  alarm,  the  most  poignant  and  in- 
tense, were  felt.  Had  its  yeomanry  b(;en  as  rile  for  revolt  as  this  movement 
assumed,  hud  they  been  ready  to  seize  tlie  musket  and  brand,  no  tongue 
can  paint  the  horrors.  A  civil  war,  of  all  the  most  sanguinary,  amid  the 
snows  and  frosts  of  a  Cunudian  winter,  a  brutal  soldiery,  and  a  peas- 
antry soon  to  become  more  brutal  still — barbarized  by  violence  !  Horrors, 
too,  all  in  vain !  F<m",  of  what  avail  ?  Two  liundred  and  fifty  thousand 
souls — giving  the  insurgents  one  half  the  population — what  could  they 
do  against  the  other  half,  and  all  Britain  beside  !  At  the  fwst  relcnlings 
of  spring — if  they  could  have  held  out  so  long — the  whole  had  va-iished, 
as  the  tempest  vanishes,  leaving  the  sky  clear,  but  desolation  all  around. 

Avowedly  to  kindle  such  a  war,  so  mad  in  its  origin,  so  hopeless  in  its 
results.  Navy  Island  was  seized  from  the  American  shore,  in  part  at  least 
by  American  citizens,  organized  on  American  soil,  and  headed  by  an 
American  leader.  A  strange  spectacle  this  for  a  land  of  law,  bound  by 
treaties  wiiich  itself  had  made !  Why  this  interference  with  another 
state  ?  Why  these  efforts  to  break  a  peace  which  it  was  the  interest  of 
all  to  keep,  and  to  bring  on  a  war  which  all  had  a  like  interest  to  shun  ? 
The  answer,  while  it  will  disclose  the  interests  which  I.  ve  fermented 
through  the  case  against  the  prisoner,  will  carry  us  another  step  in  its 
progress. 

When  the  movement  on  Toronto,  by  the  weakness  of  the  insurgents, 
or  the  incapacity  of  their  leaders,  or  by  utter  destitution  of  all  just  cause, 
had  failed,  then  followed  a  general  rush  to  our  shores.  Had  they  come 
as  Emmet  and  Samson,  or  as  their  own  Bidwell  came,  to  find  a  home,  to 
mingle  with  us  and  become  of  us,  to  embark  in  our  vessel  and  share  her 
destiny,  they  had  been  welcome.  For  such,  our  ports  are  wide,  our  arms 
open.  Lot  them  come,  share  our  institutions,  taste  with  us  the  enjoyments 
and  endure  with  us  the  trials  of  our  course.  For  such  objects  many  did 
come,  have  sought  a  home  and  found  it  in  a  land  of  warm  friendships  and 
generous  sympathies.  Others,  too,  came,  but  with  no  such  aims  ;  they 
came  not  to  reside,  but  to  visit ;  not  to  share  our  fortunes,  but  to  implicate 
us  in  theirs ;  not  to  enjoy  our  peace,  but  to  persuade  us  to  wage  their 
war — such  war  as  I  have  described!  They  spoke  as  in  unmerited  dis- 
tress, and  were  heard  with  sympathy  ;  they  talked  of  freedom,  a  dear  word 
to  Americans ;  and  this,  generous  hearts,  unregulated  by  sound  heads, 
thought  they  had  the  power  to  achieve,  the  courage  to  fight  for,  and  the 
wisdom  to  preserve.  With  Great  Britain  we  are  at  peace  ;  hither  they 
came  for  recruits,  thus  disregarding  the  law  of  nations.  The  enlistment 
of  soldiers  here  for  war  abroad,  was  by  statute  a  high  misdemeanor. 
This,  they  caused  our  citizens  to  disregard — thus  to  the  meanness  of 
broken  faith,  adding  the  guilt  of  violated  law.  From  the  consequences 
of  crime  at  home,  we  gave  them  a  shelter ;  they  repaid  us  by  deluding 
our  people  and  trampling  our  statutes.  How  this  mixture  of  enthusiasm 
and  crime  resulted,  we  know.  In  vain  the  National  Executive  issued  his 
proclamation,  enforcing  order  and  commanding  peace.  Along  all  the 
border  the  same  high  passions  had  risen.  Public  meetings  were  held,  arms 
contributed,  volunteers  enlisted,  cannon  stolen,  the  arsenal  at  Batavia 
plundered  ;  and  law  had  no  voice  to  rebuke,  and  no  power  to  arrest  the 
wild  outbreak. 


!''.'.'*,  M| -/>■ 


f'U* 


.:;^i 

i] 

.  \< 

236 


GOULD  S   REPORTKR. 


Throiiijli  Schlossrr  {\\p  irifluonco  of  all  tliis  was  to  be  carried  into  Ca- 
nadii.  Navy  island  once  occupied,  the  next  slcip  was  to  form  a  provisional 
government,' tin;  olijcc't  licing  not  an  inimediulcMlescent,  but  to  orffam/.e, 
to  fortify  tlie  post,  ejitablisli  liead-(iuartera,  to  give  tbe  revolutionary  ban- 
ner a  ebanee  at  tlie  sini,  and  tben  t(»  await  tbe  expeeted  uprising  wbieb  it 
was  tbe  sole  purpose;  of  tlu;  movement  to  create  and  sustain,  (len- 
tiemen,  I  warn  you  against  tbe  (.-rror  to  wbicb  all  men  in  contemplating 
past  events  an;  exposed.  Time,  it  is  true,  has  cleared  tbo  atmospbere  ; 
things  have  sine*;  taken  their  proper  si/e  and  color.  In  the  distin- 
guishi'd  bead  of  this  frail  sister  of  nations,  wo  now  behold  only  a  par- 
doned  convict  ;  and  in  bis  military  chief — a  convict  also,  pardoned 
or  otherwise — nothing  else  hut  a  name,  another  has  m.tde  illustrious 
by  a  gallant  adventure  on  Canadian  soil  ;  and,  with  somi!  few  excep. 
tions,  in  the  men  who  swelled  their  ranks,  nothing  but  the  collected  idle- 
ness,  vice,  and  profligacy  of  the  border — kindly  named  by  the  Attorney- 
General  "the  more  n  ckless  of  our  young  men" — men  whom  nothinii 
good  could  rally,  nothing  bad  disperse.  Such,  after  four  years  of  sun- 
light on  their  character,  we  behold  llumi  now  :  not  such  were  they  then 
beheld.  Bad,  indeed,  they  were  known  to  be  ;  but  this  knowledge  only 
deepened  the  terror  their  projects  bad  created.  If,  even  when  guided  by 
the  wisdom  and  purified  by  the  virtues  of  Washington,  aided  by  the  self- 
restraint  of  a  whole  land,  our  revolution  was  traced  in  blood  and  ruin,  what 
must  have  heen  a  war  in  Canada,  conducted  by  such  leaders,  backed  by 
such  a  soldiery  ? 

Gentlemen,  standing  here  on  this  solemn  occasion,  speaking  to  interests 
which  touch  this  country,  not  only,  but  reach  beyond  the  Atlantic,  and  ac- 
countable for  what  I  utter,  not  to  man,  but  to  Him  alone  whose  jus- 
tice we  arc  attempting  to  administer,  I  am  not  at  liberty  to  employ  other 
than  tbe  language  of  truth.  I  say,  then,  that  in  a  country  which  has 
Plattsburgb  and  New  Orleans  on  its  map,  none  can  say,  none  shall  dare 
say,  that  resistance  to  invasion,  of  whatever  kind,  incited  by  whatever 
motive,  is  aught  but  tbe  highest  virtue.  To  come  to  the  rescue,  to  meet 
the  fuc  on  the  beach,  and  to  keep  the  soil  stainless  of  hostile  tread,  is  a 
holy  call  uttered  in  all  lands  and  pealing  to  all  hearts,  and  loudest  to  the 
noblc^st.  At  this  call  came  forth  those  assembled  at  Chippewa  ;  and  such 
as  in  like  circumstances  we  should  have  gone — such  they  came.  N(5t  the 
squadron,  well-equipped  and  trained  to  the  field ;  not  the  close  column, 
stout  as  rock  to  the  assault,  and  though  liable  to  fall,  yet  falling  where 
they  met  the  foe,  sure  to  remain  a  rampart  still.  Such  were  not  at  hand  ; 
but  men,  stepping  out  of  the  common  walks  of  life,  on  business  which,  as 
the  evidence  has  so  often  told  you,  brought  all  other  business  to  a  pause. 
The  artisan  from  the  shop,  the  merchant  from  tbe  store,  the  sheriff 
quitting  his  writs,  and  the  legislator  the  council-chamber,  all  undiscip- 
lined, but  all  true,  each,  like  Young  Gilkinson,  seeking  some,  but  as  yet 
unknowing  what,  way  to  make  his  right  arm  felt  in  the  general  cause. 
Thousands  of  such,  twenty-seven  years  ago,  were  seen  rushing  along  the 
Green  Hills  of  Vermont,  soon  to  return  chagrined  and  mortified  that  the 
foe  was  already  routed,  they  having  no  chance  in  the  fight,  no  share  in 
the  glory. 

But  mark  the  contrast !  those  boys  of  the  mountain,  in  their  march  to  the 
field,  left  behind  a  people  of  steadfast  faith  :  no  danger  that  the  foe  in  front 
would  be  aided  by  a  deadlier  foe  in  the  rear.    In  that  direction  all  was 


MCLKOD  S  TKIAL. 


237 


i\'. 


(1  into  Ca- 
provisionul 
>  organize, 
annry  ban- 
ig  wliich  it 
ill.  (Ion- 
itcmplnting 
inosplicrc  ; 
the  distin- 
)u\y  a  par- 
,  parduiujil 
illustrious 

'OW     f'XOf'p- 

Ik'ctcd  idlc- 
3  Attorney- 
jm  nothinc 
ars  of  sun- 
3  tlicy  tlien 
vlcdge  only 
n  guided  by 
by  the  sclt- 
d  ruin,  what 
,  backed  by 

to  interests 
itic,  and  ac- 

whose  jus- 
tnploy  other 

which  has 

shall  dare 
y  whatever 
;ue,  to  meet 

tread,  is  a 
udest  to  the 

;  and  such 
e.  Not  the 
ose  column, 
dling  where 
lot  at  band ; 
ss  which,  as 

to  a  pause. 

the  sheritr 
ill  undiscip- 
';  but  as  yet 
neral  cause, 
ig  along  the 

fied  that  the 

no  share  in 

march  to  the 
foe  in  front 
tion  all  was 


srife.  Not  so  in  (.'aiinda.  It  is  the  curse  of  ci\il  strifi',  that  none  know  in 
whom  to  confule.  All  hearts  boconie  baiuits  of  su,s|iici()n  and  dnad.  Ilo 
who  suiiles  wilh  you  now,  may,  iiii  luur  lunci',  be  your  assassin.  ,ll(!  who 
yi'sterday  partook  of  the  hospitality  of  ymir  board,  may,  I(j.nigiit,  riot  in  the 
(Irstruction  of  your  ilwelling.  Such  was  the  stah;  ol"  socii^ly  thesu  lucn  left 
b  ■hind.  Fiom  Navy  Island  bad  goni;  forth  a  proclamation,  invoking  re 
volt,  oiitjring  a  reward  I'or  liic  goviriior's  lead,  and  |)r()mising,  as  a  stimu- 
lus to  treason,  a  distribution  of  the  j)ul)lic  domuiii.  Such  wcie  the  incnte- 
nicnts  to  ri'volt ;  and  it  might  ciimc,  conic  any  moment,  but  come  only  to 
bo  marked  by  desolation  and  crushed  in  blood. 

'I'lic  island,  though  far  from  imj)rcgiial)K',  was  yet  dillicult  to  assail, 
standing  in  a  current  of  six  miles  an  iiour,  guarded  by  twelve  cannon, 
occupied  by  a  force  of  Iiundreds  and  supported  from  the  United  States 
in  the  rear,  with  all  that  private  contribution  and  |)lunder  from  thi;  public 
could  furnish.  A  regular  siege  was  therefore  begun,  and  pressed  with 
sucli  energy  and  skill  as  were  at  command.  Cut  off  from  the  Canadian 
main,  the  whole  strength  of  the  post  lay  in  the  passage  to  the  American 
shore.  While  that  was  open,  the  island  was  invincible  by  its  undi.sci. 
l)lined  enemy;  the  moment  it  was  closed,  dispersion  or  starvation  be- 
came inevitable.  Hither,  then,  all  attention  was  directed  ;  and  tin;  Caro- 
line  appeared,  not  on  a  transient  call,  but  for  permanent  employment, 
after  negotiation  and  with  a  definite  object.  I  know  that  Wells  has  souglit 
to  give  this  adventure  the  character  of  a  private  enterprise,  undertaken  for 
mere  gain.  Be  it  so.  The  danger  arising  from  it  to  the  Canadians  was 
tlie  same  as  if  the  vessel  bad  been  owned'by  the  islanders.  All  lltcy  could 
have  used  her  for  had  been  to  convey  to  them  arms,  and  provisions,  and 
munitions  of  war,  and  fresh  accessions  of  strength.  And  all  this  she  per- 
formed. VVHiether  owned  by  Wells  or  Van  Rensselaer,  was  all  the  same.  She 
took  the  character  of  the  enterprise  she  aided.  For,  "if  1  lay  siege  to  a 
place,"  says  Vattel,  53:39,  "  I  have  a  right  to  tukat  as  knk.mies  all  who 
atti'mpt  to  enter  it,  or  carry  any  thing  to  the  besieged  without  my  leave." 
Wells,  then,  and  his  vessel  and  her  crew,  were  to  be  treated  as  enemies, 
embarked  in  one  and  the  same  cause  with  V^an  Rensselaer,  taking  the  same 
risks,  assuming  the  same  responsibilities,  and  exposed  to  the  same  retri- 
butions. 

A  private,  enterprise  !  What  but  such  was  that  of  any  man  on  the 
island  ?  By  what  public  authority  were  Ihcy  acting  ?  Under  that  of  the 
United  States  ? — that  gathering  was  hostile  ;  we  at  peace.  Under  that  of 
Canada  ? — but  she  was  resisting  them  as  bandits,  rebels,  pirates.  What 
was  Van  Rensselaer's  but  a  private  enterprise  ?  what  George  Howel's  ? 
what  Sutherland's  ?  what  any  man's  ?  What  was  the  whole  undertaking 
but  a  combination  of  private  enterprises,  acknowledged  by  no  government, 
sanctioned  by  no  law  ?  A  partnership  of  individuals,  each  contributing 
something  to  the  capital  stock,  to  be  recompensed  by  an  equivalent  in  the 
dividends.  Howel  giving  his  militia  colonel's  commission  for  a  regiment; 
Sutherland  his  lawyer's  profession,  such  as  it  was,  for  a  brigade ;  Van 
Rensselaer,  his  uncle's  name  for  the  chief  command  ;  and  Wells,  his 
steamboat  for  passengers'  fare ! — each  promoting  the  common  object  for 
private  ends,  some  seeking  profit,  some  honor,  but  all  impatient  for  the 
dawn  of  that  auspicious  morn  when  they  should  no  longer  bo  pcnsioi^ers  on 
the  bounty  of  the  American  border,  but  be  transferred  to  the  Canadian 
main,  there  to  subsist  on — what?    Without  property,  without  supplies, 


k 


I!    ■' 


p 


*J38 


»     GOULD  S    RKPOHTRR. 


Iiiiving  no  tirnsury,  no  credit,  no  rlothin;^  {\>v  n  wiiitrr  cnrnpnitin,  on  what 
cnii/il  they  siilisist  .'  Iiow  l)i'  lid,  how  rhu\,  liow  paid,  Init  liy  pluudt'r  and 
rapine  f  •llow  be  slieltered,  hilt  liy  rjecMintr  I'i'oiii  liieir  dsvelhii^s  the  inhii- 
hilants  in  niid-wintir  ?  Mcsides  tlnsi',  th<y  had.  cnuld  have,  no  hope  ;  with- 
out these,  instant  iliath,  nut  l>y  the  people  invuded,  hut  dealli  by  cold,  deulh 
by  hunger,  awaited  thorn. 

Such  is  till'  cause  which  the  Attorney-(  leneral  has  soii<rlit  to  dipnify  l)y 
allusiijM  to  the  j^reat  and  ^ood  ol'  u  day  that  is  jVist !  So  the  time  has 
come,  has  it,  gentlemen,  when  tliu  ruk<'d.ii[»  rulliai  ago  of  two  frontiers, 
handed  for  rol)bery,  receivers  of  stolen  arms.  di'aliiig<  iit  murder  widi  wea. 
[)ons  taken  from  an  arsenal  which  a  burglary  had  o|)ened,  can  suggest  to 
our  iiKiUK.sT  viNuicATOu  oi'  lujoicKN  LAW  nothing  more  appropriate  than 
tho  (iHM.'k  and  Americiui  vevolutions — the  on<!  ennobled  by  the  genius  of 
IJyron,  th(!  other  by  the  self-devotion  of  La  Fayette  ?  (ientlemen,  it  is 
forgetting  what  human  nature  is — what  the  love  of  kindred  and  home  is — 
« hat  the  love  of  country  is,  to  suppose  the  (.'anadians  to  !oi»k  cidn  '\  on 
and  behold  all  these  iiorrf)rs  in  deliberate  and  systematic  preparation,  and 
vet  f<'el  no  desire  to  arrest  their  pn^gress.  Over  all  the  brotul  surface  of 
the  globe,  not  one  spot  is  to  be  found  where  man  is  so  degenerate  as  not 
to  stand  fast  at  the  call  of  such  a  duty.  What  other  lesson  is  taught  in  our 
tiwn  forests,  west  or  south,  by  the  whoop  from  the  thicket  or  everglade  ? 
Touch  with  hostile  foot  one  worthless  sand  of  Arabia,  and  the  careering 
steeds  and  flashing  cimet<'rs  which  gird  the  land  round,  will  tell  that  those 
deserts  have  homes,  and  that  the  rude  dwellers  there  are  men.  The  earth 
over,  in  civilized  life  or  rude,  wluTevcr  man  bniathes  and  a  foe  dare  ap- 
proach, nature  has  but  one  imp\ilse;  man  one  voice:  "From  HIM  who 
spread  out  that  broad  arch  above  and  this  wide  surface  beneath  came  this 
scant  substance,  this  home,  and  these  little  ones — all  1  have,  and  all  I 
hope,  and  by  that  high  title  I  will  d(!fend  them."  And  Him  1  pray  that, 
whatever  else  may  befall,  whatever  other  calamity  be  in  store,  to  this  high 
emotion  the  first  rebuke  be  never  administered  by  an  American  jury,  hold- 
ing  that  those  who  came  forth  for  their  country  at  such  a  time  and  against 
such  a  foe,  aro  for  that,  and  for  no  other  cause,  unworthy  of  belief  under 
oath. 

I  do  not  apologize  for  their  entrance  of  our  territory — no  need  to  do  so  ; 
but  I  do  say  their  end  was  good,  their  motive  holy.  The  enemy  they 
sought  they  had  a  right  to  .strike.  The  error  was  in  crossing  a  lino  no  eye 
ever  saw,  no  compass  ever  ran.  They  may  have  erred  and  mistook  the 
law,  as  the  President  and  his'  cabinet  have,  it  seems,  mistaken  it — as  our 
wisest  jurists,  as  Great  Britain  herself,  as  the  enlightened  public  opinion 
of  all  Europe  mistakes  it  still.  No  time  to  consult  Grotius  had  those  mm. 
They  were  to  act,  act  on  the  instant.  For,  keep  in  view  all  the  while  that 
these  operations,  not  only  on  the  island,  but  on  our  whole  frontier,  had  as 
their  basis  that  the  materials  for  a  wide-spread  insurrection  existed  in  the 
province.  It  was  this  that  the  whole  excitement  rested  upon.  That  such 
materials  existed,  there  was  evidence.  If  this  evidence  were  true,  and  no 
human  being  at  the  time  detected  its  falsity,  every  hour  of  delay  at  Chip- 
pewa  was  an  hour  of  aggravated  danger.  If  it  were  true,  every  trip  made 
by  the  Caroline  across  those  waters  hastened  the  catastrophe.  Something, 
therefore,  needed  to  be  done  ;  something  without  delay  ;  something  to  close 
that  passage ;  something  to  dash  the  rising  revolt,  if  revolt  had  begun  to 
rise.    Such  was  the  need,  such  the  motives  to  the  attack  at  Schlosser. 


,  on  wlmt 
iidcr  niiil 
\\\i'  iiihii- 
\>r  ;  witli- 
L)|il,  d(  atli 

lipiiity  l»y 
time  lifts 
iVoiititr^. 

with  wi  a- 

Sllijircst  tn 

riiitt;  limn 

iii'niiis  of 

incii,  it  is 

111  nut;  is — 

c.ilii  Iv   on 

■iUioii,  ami 

surface  of 

•Mtt'  IIS  not 

ij^lit  in  ovn- 

worgliulr  ? 

curefring 

I   tllHl  tllOSl-' 

Tlu>  ciirlli 
('  flan'  np- 

[ilM  wl\(. 

I  cauic  tliis 

,  ami   all  I 

pray  that, 

o  tills  higii 

jnry,  hold- 
\ml  against 
n-lief  under 

d  to  do  so  ; 

n<"niy  tliey 
in<!  no  eye 

nistook  the 
il — as  our 

)lic  opinion 
those  mm. 
!  while  that 

tier,  had  as 

Listed  in  the 

That  such 

rue,  and  no 

ay  at  Chip- 

y  trip  made 
Something, 
ling  to  close 
id  begun  to 
t  Schlosser. 


MCLKOI)  S   TKIAL. 


989 


4 
il«l 


Impearhod,  theti,  nro  thfse  men  ?  Tin  ir  cp'dit,  is  it  itnpain-d  ?  All  I  ask 
is,  thai  tliuir  tfstiniony  niay  he  rccciviil  [jy  _\iiii  ami  cnililtd  aa  ilir  depo- 
sitions of  other  men  would  he  rteeived  andrndjtid.  If  you  iicconi  to  tlu-ni 
this  degree;  of  trust,  how  is  the  presence  ol'lhe  prisoner  at  Schlosser  to  he 
made  out?  What  stronger  |)roof  of  innocence  tlian  this  could  lie  hoped  ? 
>  et  it  is  the  least  of  our  ea.su.  Still  little  us  il  is,  il  wholly  reptd.^  the  pos- 
lihility  ol'  guilt. 

FJul  the  prosecutors  themselves  have  thrown  their  own  case  into  douht. 
Why  did  the  prisoner,  on  rpiittini;  Mavis's,  lefwe  word  for  his  brother  that 
lie  had  gone  to  NiiKjara  !  \\  lial  could  have  hi  in  the  motive  ?  riKjues. 
tioiiahly,  not  concealment;  forif  thc're  he  no  mistake;,  no  talsehood.  in  the 
proof  against  him,  he  went  openly  with  the  crowd  which  assembled  to  see 
the  expedition  embark;  nay,  himself  embarked  in  the  very  preseiKM-  of  the 
man  with  whom  lie  had  left  the  message.  Why,  too,  did  he  order  his  horse? 
Surely  this  is  not  the  usual  wny  of  passage  from  Chippewa  to  Schlosser. 
Surely  there  is  no  proof  that  the  Caroline  was  attacked  by  any  on  horse, 
back.  Whither  was  the  horse  led  i  W  here  left  i  Certainly  these  an;  not 
badges  of  guilt,  unless  it  be  shown  that  they  wore  used  for  deception.  Hut 
this  is  not  shown.  lJn(;.\plained,  they  arc  proofs  of  innoCenee  :  yet  une,\. 
plaiiied  they  are.     Is  this  nothing  ? 

Hut  we  have  still  other  helps  from  tlu;  people's  case.  To  prove  the 
ol)i*;ct  of  the  prisoner's  visit  to  Butliilo,  and  for  what  end  ho  went  round 
the  island,  his  own  declarations  have  been  oifered.  Undoubtedly  tli<y  are 
cvidiincc;,  but  they  must  all  be  taken  together.  Made  at  the  same  time, 
they  are  all  evidence,  or  none.  What  in  them  works  for  him  is  to  he  ere- 
dit('il,  as  well  as  wlmt  against  him.  Tlu-se  declarations,  then,  show  why 
his  horse  was  called  for,  where  he  went,  with  whom  he  went,  how  long 
he  staid,  and  when  he  returned.  Is  this  nothing?  Creates  it  no  doubt  ? 
None  ?  So  much  for  the  evidence  of  innocence  given  by  the  |)rosecution. 
Now  for  our  own. 

That  winter  Mr.  Press  was  at  Chippewa  but  once.  The  same  evening 
he  returned  to  his  home  in  Niagara,  (;ighteen  miles  distant,  and  the  next 
morning  heard  for  the  first  time  that  the  Caroline  was  destroyed.  Dors 
not  that  fix  the  day  ?  But  ho  had  been  to  Chippewa  on  business,  received 
money,  charged  it  to  himself  on  his  partnership  books:  there  stands  the 
charge  now,  entered  the  day  the  service  was  rendered,  the  29th  December  ; 
precedi;d  by  charges  of  the  previous,  followed  by  those  of  the  subsequent 
day,  all  in  the  usual  course  of  entry.  Does  not  that  fix  the  day  ?  When 
at  Chippewa,  Mr.  Press  dined  with  Captain  Stocking,  visited  with  him  the 
fortifications,  and  together  saw  the  Caroline  plying  between  the  island  and 
Schlosser,  the  first,  last,  and  only  time  they  ever  beheld  her.  That  night 
she  took  her  blazing  course  down  the  rapids  and  over  the  cataract.  Do(;s 
not  this  fix  th(!  day  ?  On  that  evening  the  prisoner  accompanied  Mr.  Press 
to  Stamford,  six  miles.  This  shows  where  he  went,  does  it  not  ?  Tlie 
night  the  Caroline  was  destroyed  Colonel  Cameron  slept  in  Chippewa,  and 
at  nine  in  the  morning  carried  to  Stamford  the  intelligence  of  her  destruc- 
tion. From  him  Captain  Morrison  received  the  news,  and  communicated 
it  to  the  prisoner  in  the  presence  of  the  whole  family.  This  family,  four 
in  number,  all  testify  that  the  prisoner  took  tea  with  them  the  evening  be. 
fore,  remained  up  till  past  twelve  o'clock,  tarried  all  night,  breakfasted  with 
them  in  the  morning,  and  left  for  Chippewa  about  ten.    Need  I  allude  to 


n  • 


240 


GOULl)  S    HEPORTER. 


,,  -Mil 


iM 


Judge  McIiCan,  who  met  him  returning  ?  to  young  Giiliinson,  who  rode 
with  hiin  throu.'rh  Ciiippuwa  up  to  the  liead  of  Navy  Island  ? 

Gentlemen,  can  there  he  a  possibility  that  the  prisoner  was  at  Schlos- 
ser  .'  can  tiie  presence  of  a  man  at  any  place  be  more  conclusively  proved 
than  McLeod's  at  Stamford  ?  The  whole  ground  is  covered.  Can  any 
man,  you,  or  you,  prove  where  you  were  ten  days  ago  by  stronger  evi- 
dence than  tills  ? 

It  has  already  been  intimated,  and  will  be  openly  said  by  the  Attorney. 
General,  that  the  dcleacc  of  an  u/i/u  is  suspicious,  the  resort  of  rogues,  and 
siiould  be  regarded  by  a  jury  with  great  jealousy.  Be  as  jealous  as  you 
please,  gentlemen.  Were  you  indicted  for  the  same  offence,  what  could 
your  detence  be,  but  an  alibi/  Bear  in  mind,  that  presence  at  Schhjsser 
was  crime  ;  and  being  away,  the  only  innocence.  Now  what  defence  could 
every  innocent  man  on  earth  interpose  save  only  that  he  was  not  present  ? 
And  what  is  that  but  an  a/iiji  ? 

T'lus  we  see  the  situation  in  which  the  prisoner  stands ;  how  he  is  for- 
fifiiLd,  first,  by  the  presun)ption  of  innocence,  and  then  by  the  testimony  of 
those  by  whom  the  crime,  as  it  is  called,  was  committed  ;  next  by  the  wit- 
nesses for  the  jjeo'ple,  showing  that  he  called  for  his  horse  and  left;  and 
lastly,  by  his  own,  proving  where  he  went,  how  long  he  tarried,  and  when 
he  returned.  Such,  gentlemen,  is  the  prisoner's  defence,  such  the  proof  by 
which  it  is  sustained. 

Now,  let  us  look  at  the  prosecution,  and  see  whether  there  be  a  reason- 
able doubt,  not  of  guilt,  for  that  is  out  of  the,  question,  but  of  innocence. 

It  was  said  by  the  Court  before  you  were  empannelled,  that  you  have 
nothing  to  do  with  consequences.  In  one  point  of  view  this  is  true,  in 
another,  erron<  ous.  If  the  prisoner  be  proved  guilty,  by  testimony  which 
(excludes  doubt,  leaving  no  chance  of  innocence,  coming  from  witnesses 
who  have  had  fair  op|)orlunily  to  sec  and  clear  memories  to  retain  the 
facts  to  which  they  depose,  and  of  unimpeached  veracity — if  his  guilt  be 
established  by  such  testimony,  then  it  is  true  you  have  nothing  to  do  with 
the  consequences  of  conviction.  It  is  your  duty  to  give  a  verdict  of  guilty. 
Though  from  it  war  should  come,  though  our  commerce  should  be  swept 
from  the  ocean,  our  frontiers  be  desolated,  and  the  Hames  of  war  blaze 
up  over  all  our  land,  your  duty  is  a  plain  one.  Should  you  falter,  suffer 
yourselves  to  be  brought  off  from  duty  even  by  your  love  of  country, 
though  all  the  nation  might  rise  up  and  call  you  blessed,  still  you  would 
commit  a  crime  for  which  He  whose  justice  you  are  administering,  would 
at  a  future  day  call  you  to  a  terrible  account. 

But,  though  you  may  not  swerve  from  duty  by  fear  of  consequences, 
you  must  weigh  the  credibility  of  witnesses.  It  is  a  humiliating  truth, 
but  still  a  truth,  that  human  testimony  is  swayed  by  human  desires. 
If  war  is  to  come  from  your  verdict,  then  it  is  your  duty  to  look  whether 
the  witnesses  who  have  appeared  one  after  another  on  the  stand,  did  not 
come  moved  by  the  desire  to  produce  this  consequence.  These  same 
men,  by  whom  Navy  Island  was  seized,  are  still  in  our  midst ;  nay,  before 
us  now,  watching  with  deepest  interest  the  progress  of  this  cause.  If 
three  years  ago  war  was  an  object,  is  it  not  so  now  ?  If  Van  Rensselaer 
were  then  a  valuable  acquisition,  would  not  the  commander-in-chief  of 
our  national  army  be  one  more  valuable  stil! '  The  motive  exists  yet 
stronger  now  than  then.  It  is  now  almost  a  certainty  that  the  conviction 
and  execution  of  the  prisoner  would  lead  to  hostility.     Now  is  the  lost  op- 


on,  who  rode 

'as  at  Schlos- 
isively  proved 
id.  Can  any 
stronger  evi- 

the  Attorney. 
3f  rogues,  and 
ealous  lis  you 
D,  what  could 
i  at  Schlo.sser 
defence  could 
I  not  present  ? 

low  he  is  for- 
I  testimony  of 
?xt  by  the  wit- 
and  left ;  and 
ied,  and  when 
I  the  proof  by 

I  be  a  rcason- 
innoconce. 
,hat  you  have 
lis  is  true,  in 
tinnony  which 
jm  witnesses 
to  retain  the 
f  his  guilt  be 

g  to  do  with 

ict  of  guilty. 
)uld  be  swept 
of  war  bl;ize 

falter,  suffer 
of  country, 

11  you  would 
:ering,  would 


ansequences, 

;ing  truth, 

nan  desires. 

ook  whether 

tand,  did  not 

These  same 

nay,  before 

cause.     If 

Rensselaer 

in-chief  of 

ve  exists  yet 

3  conviction 

the  last  op- 


MCLEOd's  TRfAL. 


241 


degree  of 
residence 
asunder. 


portunity  of  those  who  have  so  long  infested  our  border.  Failing  now, 
the  chances  are,  that  they  fail  forever.  Perhaps  those  who  have  hereto- 
fore been  deterred  from  their  purposes  by  no  fear  of  crime,  may  now  falter 
at  a  quiet,  unobtrusive  perjury,  easy  to  commit,  impossible  to  punish,  the 
rewards  of  which  would  be  the  gratification  of  hopes  so  long  cherished, 
so  often  deferred.  Whether  they  have  thus  faltered,  is  a  question  (or  you, 
and  you  alone,  to  determine. 

Now,  gentlemen,  allow  me  to  review  hastily  the  testimony  against  the 
prisoner.  The  first  witness  is  Drown  ;  his  evidence  is  important,  //"  true. 
On  that  fatal  night,  when  the  destroyers  of  the  Caroline  were  disembarking, 
the  sky  covered  with  clouds,  no  moon,  no  snow,  no  light  of  any  descrip- 
tion, this  witness  saw  the  prisoner  at  the  distahce  of  ten  feet,  no  nearer, 
and  recognized  him.  "  Are  you  sure  it  was  McLeod  ?  "  said  the  Attorney- 
General.  "  As  sure  as  that  he  sits  there!"  That  statement  shows  what 
credit  the  witness  deserves.  At  the  distance  of  len*  f(;et,  and  in  such  a 
night,  could  he  have  been  as  certain  that  the  man  he  saw,  if  he  saw  any, 
was  the  prisoner,  as  he  was,  on  the  stand,  at  a  shorter  distance,  by  day- 
light, and  with  a  full  opportunity  to  distinguish  every  lineament  of  iiis 
countenance  ?  On  all  these  questions  of  identity,  the  severest  scrutiny 
must  be  employed.  How  infinite  the  diversities  of  the  human  counte- 
nance !  And  yet  how  difficult  it  is  to  distinguish,  at  a  short  distance,  the 
individual,  unless  the  light  be  clear  and  the  acquaintance  intimate !  The 
light,  we  know  ;  but  what  was  the  intimacy  ?  Of  the  one,  the 
was  at  Niagara  ;  of  the  other,  at  Chippewa,  eighteen  miles 
Their  occupations  as  unlike  as  their  residence  :  the  witness  a 
teamster,  the  prisoner  a  deputy-sheritf;  and  they  had  never  spoken  to- 
gether. And  yet  he  dare  swear  that  the  man  he  saw  in  that  darkness  was 
as  surelj-^  McLeod  as  the  one  he  looked  down  upon  from  the  stand !  The 
last  three  nights  of  this  trial  have  been,  in  darkness,  in  the  lowering  state 
of  the  atmosphere,  the  want  of  snow  and  moon,  and  in  an  occasional  star 
beaming  through  some  fissure  in  the  clouds,  like  the  one  to  which  all  this 
testimony  relates.  And  did  not  the  thought  occur  to  every  one  of  you — 
I  know  it  did,  as  you  left  court  at  the  late  hours  of  adjournment — how  ut- 
terly uncertain,  how  worse  than  uncertain,  was  all  the  testimony  tending 
♦o  show  the  prisoner  at  Chippewa  and  not  at  Stamford  ?  This  witness 
further  deposed  that  on  the  ensuing  morning,  between  daylight  and  sun- 
rise,  he  saw  on  the  stoop  of  Davis's  tavern  a  man  who,  he  was  equally 
sure,  was  McLeod,  five  or  six  rods  off";  and  on  hearing  that  he  had  been 
wounded,  went  there  tc^  learn  the  extent ;  but  the  prisoner  had  vanished 
and  could  nowhere  be  found !  Such  evidence  needed  not  the  impeach- 
ment it  has  received  from  the  evidence  of  Mr.  Bates,  that  this  witness  had 
denied  all  knowledge  implicating  the  prisoner  with  the  transaction. 

The  next  is  the  witness  Parke.  At  the  same  hour  of  midnight  dark- 
ness, and  with  no  better  opportunities  of  correct  vision,  he  saw  McLeod 
embark  for  Schlosser.  Like  Drown,  too,  he  saw  somebody  at  the  same 
emphatic  period  between  daylight  and  sunrise,  at  the  same  distance  of 
five  or  six  rods — not  however  on  the  tavern  steps,  but  on  the  Public 
Square  ;  and  this  somebody  he  of  course  took  to  be  McLeod. 

Gentlemen,  than  these  recollections  of  time,  long  past,  nothing  can  be 
more  unsatisfactory,  nothing  more  suspicious.  All  hours,  all  days,  all 
years  are  respectively  alike,  and  can  be  distinguished  from  each  other  only 
by  events  connected  with  them.     By  what  magic  is  it)  then^  that  the  wit- 

31 


3M^ 


m 


:     £  i 


H 


.  »■  I'v:   . 


'it,    " 


aff"' 


5|) 


■'I 


*.  Si 


i^:# 


■a 


!t?i 


242 


gou£d's  reporter. 


m 


nesscs  are  enabled  to  remember  the  precise  hour  of  the  exact  clay  when 
they  may  have  looked  upon  the  prisoner  ?  How  has  it  happened  that  his 
bare  presence  has  formed  an  era  in  so  many  lives  ?  For  any  reason  they 
have  assigned,  it  might  have  been  as  well  a  month  earlier  or  later,  as  al 
the  exact  minute  assigned.  Parke  gives  none;  Hinman,  none  ;  Corson, 
none  ;  nor  Caswell ;  they  are  very  accurate  in  sering  iiim  in  the  evening, 
a  little  later  than  our  proof  of  his  departure,  and  a  little  eurlici-  in  the 
morning  than  our  proof  of  his  return.  All  right  and  proper,  certainly,  if 
it  be  true  ;  but  they  assign  no  reason  tor  us  to  believe  it  true — no  causi; 
for  remembrance — none  for  the  discrimination.  They  give  us  no  assu- 
rance against  mistake,  unless  the  absence  of  every  thing  likely  to  fix  re- 
coUection  connected  with  the  unwavering  positiveness  with  wliich  they 
.swear  to  time,  may  justly  assure  us  that  though  mistake  be  absent,  yet 
perjury  is  present  doing  its  office. 

Now,  allow  me  to  examine  Corson's  testimony.  Of  him  there  can  be 
but  one  opinion.  He  is  delected  in  what  he  must  have  known  to  be  ;i 
wilful  and  deliberate  perjury.  Of  this  there  can  be  no  question  or  mistake. 
He  was  called,  you  rcynember,  to  depose  to  that  stereotyped  confessioi) 
repeated  by  every  witness  without  the  slightest  variation.  The  time,  be- 
tween daylight  and  sunrise  ;  the  place,  Davis's  stoop  ;  the  language,  "  ) 
have  killed  one  d — d  Yankee."  On  cross-examination,  the  usual  test  of 
safe  recollection  was  applied  :  "  Who  were  present  ?  "  He  could  recol- 
lect none  at  first,  but  on  being  pressed,  he  replied,  "  It  strikes  me  Mr. 
Caswell  was."  My  associate  suspected  Caswell  to  be  a  witness,  and  to 
that  inquiiy,  Corson  answered  in  tiic  affirmative.  "  Have  you  conversed 
with  him  about  this  suit  ?  "  "  No."  You  remember  how  it  came  out  that 
on  that  very  morning,  before  being  sworn,  he  and  Caswell  had  talked  over 
together  what  their  respective  evidence  was  to  be ;  both  were  to  swear 
they  saw  the  prisoner  come  from  the  bar-room  at  nine  in  the  evening  ; 
both  to  his  being  on  the  stoop  in  the  morning  ;  both  to  that  same  murderous 
confession:  "  Now,  sir,  when  did  it  first  occur  to  you  that  Caswell  was 
present  ?  "  "  This  moment  !  "  How  is  it,  gentlemen,  that  when  Caswell 
said  that  he  was  to  swear  to  the  same  confession,  uttered  at  the  same  time 
and  in  the  same  i)lace,  this  witness  never  suspected  him  to  have  been 
present  ?  If  their  tale  be  all  concerted  and  all  false,  the  absence  of  such 
a  suspicion  is  easily  understood.  But  then  there  would  be  perjury  in 
swearing  to  Caswell's  presence,  and  perjury,  at  all  events,  in  denying  all 
conversation  with  him  ;  unless,  indeed,  there  be  charity  enough  to  suppose 
that,  although  he  may  forget  what  passes  in  the  morning,  he  can  never- 
theless remember  with  infallible  accuracy  conversations  held  four  years 
ago,  the  30th  day  of  of  next  December,  between  daylight  and  sunrise. 

This  witness  also  disposes  of  Caswell ;  for,  though  he  denies  all  com- 
munication with  Corson,  yet  he  swears  to  the  same  facts  that  Corson  had 
stated  he  would,  thus  convicting  himself  and  unfolding  the  turpitude  of 
both.  These  two  witnesses,  therefore,  annihilate  each  other  by  entangling 
themselves  in  the  same  net  of  falsehood  they  had  spread  for  the  prisoner. 

A  remarkable  place  in  your  attention  is  deserved  by  the  witness  Meyers. 
Other  confessions  may  have  been  dropped  unawares,  at  least  without  due 
consideration  of  their  importance  ;  but  this  has  a  pageantry  smacking  of  tlie 
sublime.  It  was  at  the  Falls,  ten  days  after  the  destruction  of  the  Caroline — 
sixty  persons  in  the  room,  mostly  soldiers.  All  is  deep  silence.  Suddenly, 
some  one  makes  proclamatiou, "  Where  is  the  man  that  shot  A  mos  Durfee  1 " 


•^5i 


Mcleod's  trial. 


243 


.ct  day  when 
ened  ihat  lli^s 
J  reason  thuy 
ii-  later,  as  ai 
jnc  ;  Corson, 
the  evening, 
eiirhcr  in  the 
,  ccvtiiinly,  if 
■ue — no  cuusi! 
e  us  no  assu- 
koly  to  fix  re- 
th  which  they 
be  absent,  yet 

1  there  can  be 
Lnowa  to  be  a 
on  or  mistake, 
jed  confessiou 
The  time,  be- 
)  language,  " ) 
o  usual  test  of 
le  could  recol- 
trikes  mc  Mr. 
witness,  and  to 
you  conversed 
t  came  out  that 
had  talked  over 
were  to  swear 
h  the  evening ; 
[ame  murderous 
at  Caswell  was 
ft  when  Caswell 
;  the  same  time 
.  to  have  been 
ibsence  of  buch 
be  perjury  in 
,  in  denying  all 
Dugh  to  suppose 
,  he  can  never- 
held  four  years 
nd  sunrise. 
denies  all  corn- 
that  Corson  had 
he  turpitude  of 
r  by  entangling 
"or  the  prisoner, 
witness  Meyers. 
<ast  without  due 
smacking  of  the 
the  Caroline — 
ice.     Suddenly, 
AmosDurfoel" 


Forth  steps  the  prisoner,  draws  a  horseman's  pistol  from  within  the  breast 
of  his  coat,  and  re.sponds:  "  I'm  the  man,  and  this  tlie  pistol  that  did  it!" 
— then  puts  back  that  murderous  engim^,  and  pulls  out  a  sword  with  six 
inches  of  blood  on  the  point,  and  continues,  '•  That  is  Yankee  blood  !  " — 
prefixing  to  the  "  Yankee,"  with  due  loyalty,  the  epithet  damned,  and  then 
puts  back  his  sword.  Here  tlic  jKigcant  ends  ;  but  not  ihe  testimony  of 
this  witness.  How  he  discovered  the  prisoner's  nan)e  should  not  be  for- 
gotten.  The  witness,  you  will  remember,  got  into  some  difiiculty  at  the 
stable,  and  had  well  nigh  been  arrested.  After  a  parley,  one  of  the  sol- 
diers said  to  the  prisoner,  "  Alexander  McLeod,  is  it  ijost  to  let  him  go  ?  " 
But  he  had  before  stated  that  McLeod  was  called  Sandy  as  well  as  Alex- 
ander. His  honor  took  up  the  question,  and  desii-cd  the  form  o*' cxijtcs- 
sion  in  which  that  name  also  occurred.  Jt  was  thus:  "ISandy  McLeud, 
let  us  go  in  and  take  something  !  "  Such  is  the  marvellous  testimony  of 
this  witness — stupid  in  niind,  stupid  in  feature,  more  stupid  yet  in  his  ri- 
diculous falsehoods.  Is  the  story  thus  told  entitled  to  any  thing  but  con- 
tempt? Is  it  not  ti'ifiing  with  tlie  solemnity  of  the  coin-t,  with  human  life, 
to  introduce  evidence  so  utterly  without  pretence  of  truth  ?  A  horse- 
man's pistol  carried  in  this  way  !  Human  blood  so  carefully  hoarded  ! 
The  whole  name  thus  unaccountably  used  in  familiar  conversation  !  All 
this,  too,  told  by  a  wretch  too  besotted  to  have  been  able  to  repeat  the  story 
had  it  actually  occurred. 

These  are  circumstances,  rentlemen,  by  which  perjury  may  always  be 
detected.  This  ofience  ^  •  '  g  new  on  the  earth  :  it  is  easily  commit- 
ted, always  hard  to  discov  .  :',  has,  therefore,  long  received  the  atten- 
tion of  courts  of  justice  anu  sages  of  the  law  ;  and  from  their  examination 
certain  rules,  certain  texts  have  been  framed.  One  of  almost  invariable 
certainty  is,  that  the  witness  who  deposes  to  a  transaction  falsely,  never 
places  at  the  time  ^r  place  men  by  whom  he  can  be  contradicted.  The 
conversation  will  be  described  as  either  alone  or  in  the  presence  of  per- 
sons unknown,  unless  the  witness,  like  Corson,  place  there  some  one 
equally  false,  by  whom  he  expects  to  be  backed.  But  there  will  be  no 
other  there  to  throw  light  on  the  transaction,  to  correct  any  mistake,  or  to 
repel  the  falsehood.  This  is  the  evidence,  the  uniform  evidence,  of  per- 
jury. Now,  take  this  rule  and  apply  it  to  every  witness.  In  the  morn- 
ing after  the  destruction,  the  prisoner  confesses  to  a  room-full — nobody  to 
be  named  but  Anson,  who  proves  it ! — afterwards  again,  on  the  stoop,  to 
Ct  crowd  ;  no  names  disclosed  but  those  of  Corson  and  Caswell ! — again 
on  the  Chippewa  Bridge,  to  a  company  of  soldiers.  Quinby  knew  the 
prisoner,  and  knew  nobody  else !  In  every  instance  there  was  no  man 
by  whom  the  falsehood  could  be  djtected  ! — never  before  so  complete  a' 
demonstration  of  the  force  of  that  rule  as  this  case  furnishes.  At  the 
Falls,  Meyers  can  recollect  no  one  from  the  whole  sixty  ;  and  at  Niagara, 
the  confession  was  too  precious  to  be  enjoyed  by  any  one  known  or  un- 
known except  Wheaton.  Throughout,  whenever  a  confession  has  been 
proved,  no  man  has  been  located  near,  of  whom  we  could  inquire,  to  de- 
tect the  falsehood,  or  to  punish  the  perjurer.  The  face  of  the  prisoner 
can  be  remembered,  but  no  other  face  ! — his  words,  but  the  words  of  no 
other !  Wilson  is  another  illustration :  nobody  vouched  but  Raincock. 
Yet  Raincock  just  as  certainly  heard  that  confession  as  the  prisoner  made 
it!  The  witness  had  the  same  recollection  of  the  one  as  of  the 
other.     Why  should  he  not  ?    The  admission  made  by  the  latter  was 


t   ■!  ./'.If 


t      1 


"■#      * 

-r^-;. 


A^ 


244 


Gould's  eepoeteb. 


given 


in  answer  to  an  inquiry  put  by  the  former.  And  surely  it  was 
very  right  in  the  witness  to  remember  both  with  equal  certainty.  The 
idea  was  one  and  indivisible.  So  far,  this  was  an  apparent  exception  ; 
only  apparent,  for  the  witness  was  constrained  to  admit  tiiat  llaincock  had 
absconded !  And  when  it  came  out  afterwards  that  he  had  absconded 
to  Europe  montiis  before  the  destruction  of  the  Caroline,  the  idea,  so  en- 
tirely one  and  indivisible,  certainly  became  divided.  This  witness  has 
other  vouchers  of  integrity  as  well  as  disinterestedness.  He  refused  to 
answer  whether  he  had  harbored  the  infamous  Lett ;  whether  he  had  set 
on  foot  a  military  expedition  against  Canada,  and  whether  he  belonged  to 
any  secret  society  aiming  to  produce  a  rupture  between  this  country  and 
Great  Britain.  But  he  did  admit  that  he  had  given  two  hundred  dollars 
to  aid  the  "  patriot  "  cause. 

Here  is  another  witness  whose  story  is  to  be  assumed  as  false — false 
at  the  beginning,  false  at  the  conclusion,  and  false  in  all  its  details.  I 
refer  to  Stevens.  On  the  night  of  the  destruction,  he  says  he  saw  the 
prisoner  embark,  and  the  expedition  .«itart ;  not  from,  the  canal,  but  the 
beacon ;  not  seven,  but  three  boats,  and  no  more ;  and  not  ascend  the 
river  a  mile,  but  put  right  out  of  sight  towards  Schlosser.  This  testimony 
is  valuable  for  no  other  purpose  than  to  show  that  perjury  is  rife  in  the 
cause  ;  but  this  is  the  boldest  of  all,  for,  in  every  respect,  it  contradicts 
the  proof — the  whole  of  it — given  on  both  sides. 

Next  comes  the  distinguished  Quinby.  He  has  acquired  reputation 
elsewhere  as  well  as  here.  At  the  county-seat  in  Warren,  twenty-six 
miles  from  his  home,  and  after  a  residence  of  only  three  years,  the  vigor 
of  his  oath  has  gained  for  him  a  fame  amounting  to  a  proverb — "  If  a 
witness  is  wanted  to  swear  right  through,  call  Quinby,"  is  the  tribute 
there  accorded  by  common  consent  to  his  virtues.  But  though  his  neigh- 
bors  had  not  brought  us  the  proverb,  his  conduct  here,  I  subn..  ,  would 
have  enabled  us  to  have  formed  one  of  the  same  kind  for  ourselves.  High 
as  is  the  fame  of  his  veracity,  his  mtelligence.  seems  to  be  much  on  a  level 
with  that  of  Meyers.  The  day  before  the  expedition,  became  to  Chippewa 
with  hay  ;  could  not  tell  to  whom  he  sold  it,  nor  how  much,  where  weighed, 
or  where  delivered.  Entered  Davis's  bar-room  at  nine,  saw  the  prisoner 
come  out — had  seen  him  often  before— could  not  tell  where — nor  why  he 
remembered  it  now.  Walked  home  two  miles  before  ten,  was  back  in  the 
morning,  "  between  daylight  and  sunrise,"  to  get  his  pay,  and  heard  the 
prisoner  confess  on  Chippewa  bridge,  to  a  troop  of  Coburg  soldiers.  My 
associate  asked  ;  "  Why  did  you  leave  home  so  early  in  the  morning  ?" 
The  miserable  idiot  thought  he  had  taken  wrong  lodgings,  and  that  to  be 
■  back  to  Chippewa  at  the  indispensable  hour  between  daylight  and  sunrise, 
would  be  too  quick  an  operation.  He  faltered.  At  length  :  "  I  did  not 
GO  home!"  "Not  home!  Where  then?"  "  To  Mr.  Pettis'."  Where's 
that?"  "In  Sodom" — about  halfway  home,  where  he  had  never  stayed 
before  or  since.  Then  came  the  wretched  story  of  going  to  the  com- 
missary's for  his  pay  before  sunrise,  though  he  did  not  expect  to  find  him 
in  his  office ;  and  of  his  wanderings  about,  unpaid  and  unfed,  unable  to 
name  one  man  he  saw,  or  one  word  he  heard,  until  he  safely  deposited 
himself  at  home  about  noon — every  thing  forgotten,  save  that  one  inefface- 
able confession  deeply  graven  in  his  memory,  that  the  prisoner  had  slain 
a  Yankee !    The  exigencies  of  the  prosecution  needed  such  a  witness. 


port 


irely  it  was 
inty.  The 
exception  ; 
lincock  hud 
I  absconded 
idea,  so  en- 
witness  has 
e  refused  to 
r  he  had  set 
belonged  to 
country  and 
id  red  dollars 

false — false 
;  details.     I 

he  saw  the 
nal,  but  the 

ascend  the 
lis  testimony 
IS  rife  in  the 
t  contradicts 

d  reputation 
1,  twenty-six 
rs,  the  vigor 
)verb — "  If  a 
is  the  tribute 
Th  his  neigh- 
ihn..  ,  would 
lelves.  High 
ch  on  a  level 
to  Chippewa 
lere  weighed, 
the  prisoner 
—nor  why  he 
s  back  in  the 
nd  heard  the 
oldiers.  My 
e  morning  ?" 
ind  that  to  be 
t  and  sunrise, 

;    "  I  DID  NOT 

."  Where's 
never  stayed 
to  the  com- 
et to  find  him 
id,  unable  to 
fely  deposited 
;  one  inefface- 
mer  had  slain 
ch  a  witness. 


MCLEOD  S   TRIAL. 


245 


Quinby  came,  swore  right  through,  and  not  only  sustained  his  previous  re- 
|)Utation,  but  won  a  fresh  laurel  to  his  brow. 

Why  need  I  allude  to  Whealon  ?  II(^  too  heard  a  confession.  He  had 
left  his  residence,  thirty-five  miles  from  Toronto,  on  business  at  Lock- 
port ;  arrived  in  Niagara  ;  went  to  the  dock  ;  heard  the  prisoner,  whom 
lie  had  never  before  seen,  nor  since,  make  a  confession  ;  used  no  efTort 
to  cross  the  river ;  changed  his  mind  ;  went  right  back  homo  again,  able 
to  give  no  just  reason  for  the  change  ;  no  account  of  the  business  he  so 
unaccountably  left  untouched,  making  a  journey  to  and  fro  of  one  hundred 
and  forty  miles  for  nothing.  Why  speak  of  Anson,  the  wandering  jour- 
neyman  ?  FIc  too,  just  at  break  of  day,  in  a  room  were  no  lights  were 
burning,  before  an  unknown  audience,  heard  an  unusual  controversy, 
"which  had  done* the  greatest  crime;"  and  heard  too  then  and  there  the 
prisoner  confess,  brandishing  a  bloody  pistol ; — a  piece  of  information 
which  slumbered  in  his  mind  three  year.s  for  lack  of  "  a  convenient  op. 
portunity  to  tell  of  it ;"  and  was  first  communicated  to  the  world  on  the  day 
the  witness  rode  eighteen  miles  express  to  make  the  prisoner's  commit- 
ment by  the  examining  magistrate  sure. 

Such,  gentlemen,  is  the  evidence  on  which  you  are  called  to  find  a 
verdict  of  guilty.  Much  of  it  consists  in  declarations.  If  the  prisoner 
be  as  communicative  as  he  is  represented  to  hv — if  he  be  as  anxious  to 
have  the  world  know  his  participation  in  the  afiair  of  the  Caroline,  as  the 
Attorney-General  would  have  us  suppose,  and  as  we  have  a  right  to  be- 
lieve, if  the  evidence  be  true,  it  is  a  little  remarkable,  that  a  more  full  and 
detailed  account  of  the  transaction  cannot  be  procured.  These  alleged 
confessions  run  through  a  period  of  eleven  months.  His  agency,  you  have 
been  told,  was  prominent,  and  certainly  there  can  be  no  complaint  of  want 
of  frankness  in  his  communications.  Men  of  this  kind  have  acquaintances, 
and  are  apt  to  narrate  the  transactions  in  which  they  have  engaged,  com- 
mencing  at  the  beginning  and  going  along  step  by  stcj).  Who  ever  heard 
of  a  man  engaged  in  an  event  of  great  interest,  producing  high  and  deep 
excitement  on  both  sides  of  the  frontier,  repeating  one  single  sentence  at 
all  times  and  places,  and  never  entering  more  fully  into  the  history  ?  It  is 
incredible ;  it  never  did,  it  never  can  happen ;  it  violates  every  law  of  human 
nature,  every  impulse  of  human  vanity.  Especially  so,  in  a  transaction  like 
this.  It  was  a  deed  calculated  to  strike — it  was  done  amid  danger — the  pas- 
sage was  in  a  swift  current,  almost  on  the  slide  of  the  rapids.  Navy  Island 
behind,  the  cataract  below;  one  rod  of  sweep  too  much,  to  avoid  the  cannon 
of  the  former,  had  plunged  the  adventurers  into  the  abyss  of  the  latter. 
Rely  upon  it,  if  the  prisoner  be  thus  frank,  and  were  engaged  in  the  en- 
terprise, there  are  men  on  both  sides  of  the  frontier  to  whom  he  has 
spoken  ;  told  the  whole  story,  how  ho  got  u|)  the  expedition,  in  which 
boat,  and  with  whom  he  went  and  returned.  How  happens  it  there 
is  none  of  these  details  ?  And  yet,  who  does  not  see,  who  not  feel,  how 
infinitely  stronger  one  such  full  relation  would  be  than  all  the  loose 
and  casual  repetitions  of  one  single  sentence,  chance-dropped,  nobody 
knows  where,  nobody  can  tell  why  ?  "  Of  all  kinds  of  evidence,"  says 
Starkie,  "  that  of  extrajudicial  and  casual  observations,  is  the  weakest 
and  most  unsatisfactory.  The  necessity  for  caution  cannot  be  too  strong- 
ly and  emphatically  impressed,  when  particular  expressions  are  detailed  in 
evidence,  which  were  uttered  at  a  remote  distance  of  time.  Such  evi- 
dence is  fabricated  easily,  contradicted  with  difficulty."    Such  is  the  lau- 


■'.Ml. 


246 


GOULD  S   REPORTER. 


guagc  of  the  law  on  the  subject  of  these  declarations.     And  this  is  the 
case,  if  ever  one  arose,  where  these  solemn  cautions  should  be  regarded. 

I  have  now  gone  over  the  case.  By  way  of  recapitulation,  allow  mo  to 
reverse  the  transaction — to  place  the  murder  in  the  parlor  at  Stamford, 
and  the  alibi  on  the  Caroline  at  Schlosser.  For  in  one  or  the  other  of 
these  places  the  pWsoner  unquestionably  was.  Give  the  Attorney- 
(leneral  the  proof,  showing  him  at  the  former,  the  Morrisons  conversing, 
supping,  breakfasting  with  him  ;  the  time  determined  beyond  question  or 
cavil  by  their  recollections  not  only,  but  by  Press  and  his  account  book, 
by  Stocking,  McLean,  Gilkinson,  and  Colonel  Cameron.  Add  to  this  the 
depositions  of  the  destroyers  of  the  Caroline,  denying  that  the  prisoner 
was  among  them — witnesses  all  of  clear  intelligence  and  unsuspected 
integrity.  Against  proof  so  full,  conclusive,  overwhelming,  what  could 
avail'  the  midnight  visions  and  twilight  fancies,  and  worse  than  questionable 
veracity  of  men  like  Drown,  Corson,  Caswell,  Anson,  Quinby,  and 
Stevens  ?  Could  there  be  a  doubt  of  guilt  ?  If  not,  can  there  be  a  doubt 
of  innocence  now  ? 

I  leave  the  cause.  Deep  anxiety  and  alarm  for  the  result  of  this  trial 
have  been  felt,  but  arc  felt  no  longer.  There  is  now  no  danger  of  war, 
none  even  of  disturbed  foreign  relations.  Your  duty  is  as  delightful  as  it 
is  easy  ;  in  giving  liberty  to  an  innocent  man,  you  give  repose  to  your 
country.  I  anticipate  a  resolute  acquittal,  which  shall  satisfy  not  only 
the  crowds  assembled  around — not  only  public  justice,  but  your  own  con- 
sciences now  and  through  life,  i:^nd  bear  the  scrutiny  of  the  dread  hour  of 
final  account. 


V 


this  is  the 
regarded. 
How  mo  to 
;  Stamford, 
le  other  of 

Attorney, 
jouvcrsing, 
question  or 
;ount  book, 

to  this  the 
le  prisoner 
msuspectcd 
what  could 
uustionahle 
jinby,    and 

be  a  doubt 

of  this  trial 
rer  of  war, 
ightful  as  it 
3se  to  your 
fy  not  only 
ir  own  con- 
sad  hour  of 


Mcleod's  trial.  24!'"< 


MR.  SPENCER  S    ADDRESS    TO    THE    JURY. 

May  it  please  the  Court — 

Gentlemen  of  the  Jury  :  It  is  the  first  time  in  my  life  that  I  have 
ever  risen,  having  in  my  charge  an  important  trial  or  defence,  when 
I  felt  that  the  remaining-  duty  of  counsel,  after  the  evidence  was 
disclosed,  was  entirely  a  work  of  supererogation  ;  and  the  conscious- 
ness that  it  is  so  really  oppresses  me.  It  seems  to  enervate  the 
whole  system,  that  circumstances  like  these  should  thus  attend  me, 
and  that  I  should  be  obliged  to  detain  a  jury  whose  patience  has 
been  largely  drawn  upon,  by  commenting  on  evidence,  when,  in  my 
deliberate  judgment,  the  evidence  has  already  convinced  the  under- 
standing of  the  jury  ;  and  their  judgment  is  ripe  to  be  pronounced. 
But  in  all  this  I  may  be  mistaken.  It  is  very  possible  that  my  con- 
victions of  the  evidence  of  McLeod's  innocence  are  stronger  than 
are  yours,  or  those  of  any  other  person  who  has  not  been  so  inti- 
mately acquainted  with  the  whole  history  of  this  case  as  I  have 
been.  It  is  because  I  have  no  right  to  remit  any  exertions  which 
shall  lead  to  the  development  of  truth,  and  establish  the  innocence 
of  McLeod,  and  the  securing  of  your  verdict  of  acquittal,  that  I 
will  even  now  attempt  to  draw  further  on  your  patience,  and  submit 
such  considerations  as  deserve  to  be  reflected  oh  by  you  ;  such  as 
the  case  calls  for,  such  as  the  prisoner  has  a  right  to  demand,  and 
such  as  our  state  and  our  common  country  may  reasonably  ex- 
pect of  me.  As  I  took  occasion,  gentlemen,  to  remark,  in  the  open- 
ing of  the  defence,  this  case  is  one,  as  the  evidence  has  now  dis- 
closed it  to  be,  of  greater  importance  than  almost  any  other  ever 
brought  before  an  American  bar  for  trial.  Cases  involving  the  lives 
of  individuals  have  at  all  times  snlFicient  interest  to  awaken  the 
deepest  emotions  of  the  human  heart ;  but  wlien  we  consider  that 
this  is  a  case  involving  other  interests  far  beyond  the  life  and  death 
of  McLeod,  no  man  having  an  American  heart,  beating  in  an  Amer- 
ican bosom,  can  fail  to  be  alive  to  every  consideration  that  shall 
lead  him  to  a  right  conclusion;  and  equally  as  jurors  and  as  Amer- 
ican citizens,  1  invoke  your  attention  wliile  I  proceed  to  submit 
such  considerations  as  I  shall  address  to  you. 

You,  gentlemen,  after  all  which  shall  be  said  to  you  on  each  side 
of  this  case,  and  after  what  his  Honor  the  Judge  shall  feel  it  to  be 
his  duty  to  say  to  you  in  giving  to  you  this  case,  will  have  charge 
of  a  great  and  responsible  duty  ;  on  you  the  whole  question  fiaafly 
devolves,  and  to  you  will  the  country  look  for  a  proper  verdict  j 
and  to  yourselves,  to  your  own  consciences,  to  our  common  coun- 
try, and  to  our  God,  are  you  responsible  for  the  verdict  which  you 
may  give. 

Your  duty,  until  you  come  to  your  final  deliberation,  is  that  of  a 
patient,  attentive  hearing,  that  you  may  rightly  understand  all  that 
shall  be  said,  and  that  you  may  properly  appreciate  all  that  shall  be 
proved.  Patience  and  attention  are  the  first  duties  which  you  owe ; 
and,  afterward,  a  careful,  deliberate,  anxious,  conscientious  consid- 


I  I 


lii: 


!    Hit    fi. 


D-'i 

m:-' 

t 


:a 


948 


GOULD'S   REPORTEK. 


I  !«  I 


eration  of  what  has  been  submitted  to  your  hearing ;  and  when  you 
retire  to  the  jury-rooin  for  deliberation,  then  will  come  the  time 
when  a  responsibility,  the  first  in  importance,  will  devolve  upon 
you  ;  and  it  may  probably  be  the  last  in  the  long  life  which  you 
may  live.  Our  duty,  gentlemen,  as  counsel,  is  altogether  of  a  dif- 
ferent character  ;  more  perplexing,  more  exciting,  more  vexatious, 
more  trying  than  yours,  save  perhaps  the  final  responsibility  to 
which  a  jury  may  be  called,  in  returning  a  verdict  in  a  case  like 
this.  I  allude  to  this,  gentlemen,  only  because  some  things  have 
occurred  in  the  progress  of  this  trial  which  I  should  have  been  ex- 
ceedingly gratified  to  have  avoided.  It  is  very  natural  —  it  is  very 
proper  —  that  counsel  on  either  side  should  feel,  in  respect  to  the 
case  committed  to  their  charge.  It  is  fit  and  proper  that  the  learn- 
ed counsel  who  conduct  the  prosecution  for  the  government,  should 
feel  for  the  advancement  of  justice.  It  is  natural  that  they  should 
feel  and  believe  the  truth  of  the  case  which  they  spread  be- 
fore a  jury  ;  and,  so  believing,  it  is  natural  that  they  should  disbe- 
lieve that  set  up  for  the  prisoner.  On  the  other  hand,  you  will 
agree  that  it  is  equally  natural  and  proper  that  the  counsel  for  the 
accused,  having  bestowed  that  attention  which  their  duty  requires  in 
the  case,  should  have  formed  some  opinion,  or  received  som^  cer- 
tain and  firm  conviction,  upon  which  they  believe  they  can  rely  in 
the  question  involved.  That  they  should  feel  thus  is  proper  ;  be- 
lieving their  own  case  to  be  the  truth.  This  case,  above  all  others, 
presents  the  alternative  that  they  must  believe  everything  on  the 
other  side  to  be  utterly  untrue  and  unfounded.  Hence  it  will  have 
been  observed,  in  the  progress  of  this  trial,  that  there  has  been  some 
little  excitement  of  feeling  ;  perhaps  more  than  was  necessary. 

Gentlemen  of  the  jury,  I  hope  you  will  be  spared  all  your  lives 
from  any  such  excited  feelings  as  have  existed  on  this  trial.  You 
may  well  desire  to  be  strangers  to  the  anxiety  which  counsel  mi'st 
feel  in  the  preparation  of  such  a  case  as  this.  You  may  not  be 
acquainted  with  the  sleepless  nights,  and  the  anxious  days,  which 
attend  the  preparation  of  a  case  like  this ;  and  I  assure  you,  gen- 
tlemen, it  would  afford  you  anything  but  pleasure,  unless  it  be 
the  pleasure  which  all  must  feel  in  the  advancement  of  justice, 
and  in  the  protection  of  innocence.  You  may  have  observed,  in 
the  progress  of  this  trial,  in  the  examination  of  witnesses,  that 
there  seemed  to  be  a  want  of  kindness  and  chapity  toward  those 
who  have  been  called  to  sustain  this  prosecution  ;  there  may  have 
been  a  rigor  and  a  rigidity  of  examination  to  which,  perhaps,  wit- 
nesses should  not  be  subjected  who  appear  here  in  obedience  to  the 
mandate  of  the  law.  These  are  sentiments  which  will  naturally 
arise  in  the  minds  of  a  jury;  and  under  such  circumstances,  wit- 
nesses always  have  the  sympathy  of  a  jury.  It  is  right  and  proper 
that  it  should  be  so  ;  to  that  we  do  not  object.  When  they  seitn 
to  be  treated  with  unkindness,  with  asperity,  with  rudeness,  it  is 
natural  that  the  sympathy  of  the  jury  should  be  excited  in  behalf 
of  the  witnesses,  and  that  prejudice  should  be  excited  against  the 
counsel  who  resort  to  such  a  line  of  duty.  But  if  any  such  senti- 
ments as  these  have  arisen  in  your  minds,  I  ask  you  to  find  an  apoi- 


Mcleod's  trial. 


249 


when  you 
the  time 
)lve  upon 
I'hich  you 
'  of  a  dif- 
vexatious, 
sibility  to 
I  case  like 
nngs  have 
e  been  ex- 
-  it  is  very 
)ect  to  the 
the  learn- 
jnt,  should 
ney  should 
spread   be- 
ould  disbe- 
d,  you  will 
isei  for  the 
requires  in 
1  some  cer- 
can  rely  in 
iroper  ;  be- 
!  all  others, 
ling  on  the 
it  will  have 
been  some 
essary. 
your  lives 
trial.     You 
unsel  mnst 
may  not  be 
ays,  which 
e  you,  gen- 
nless  it  be 
of  justice, 
)served,  in 
esses,  that 
ward  those 
may  have 
rhaps,  wit- 
ence  to  the 
1  naturally 
ances,  wit- 
and  proper 
they  se4in 
eness,  it  is 
d  in  behalf 
against  the 
such  senti- 
nd  an  apol- 


ogy for  counsel  in  the  extraordinary  case  which  has  been  presented 
for  your  consideration,  and  you  will  have  less  of  sympathy  for  wit- 
nesses who  have  come  to  swear  against  the  prisoner  and  to  take 
away  his  life,  than  you  would  in  other  circumstances  and  on  other 
occasions. 

It  is  natural,  gentlemen,  too,  that  counsel  for  the  prosecution 
should  indulge  in  a  firm  belief,  on  the  one  hand,  of  the  truth  of  a 
case  the  very  opposite  of  ours,  and  that  they  should  believe  the  ev- 
idence which  they  were  to  adduce  to  support  and  sustain  the  pros- 
ecution. They  certainly  did  believe  it,  or  they  would  not  have 
been  capable  of  introducing  one  single  word  of  that  t'vidence  ;  and 
believing  that,  as  they  do,  it  is  reasonable  that  they  should  manifest 
some  degree  of  solicitude  that  it  should  stand  forth  uiiimpeached 
and  uncontradicted,  unless  truth  required  it  to  be  contradicted,  and  it 
was  unworthy  of  belief  by  the  jury  who  have  finally  to  pass  upon  it. 
On  the  other  hand,  before  I  opened  the  defence  in  this  case,  I  was 
not  an  entire  stranger  to  itststrength  and  merits  ;  and  it  had  not 
failed  to  work  strongly  on  my  mind  a  degree  of  conviction  as  to  its 
truth,  as  strong  as  that  entertained  by  the  counsel  for  the  prosecu- 
tion. And  feeling,  as  I  did,  that  our  cause  was  the  cause  of  truth, 
what  followed  \  Why,  necessarily,  that  the  case  for  the  prosecu- 
tion was  the  case  of  falsehood.  Both  cannot  stand  ;  and,  in  grap- 
pling for  the  mustery,  one  or  the  other  must  be  overthrown  ;  and 
your  verdict  must  decide  who,  iri  this  struggle,  shall  be  overthrown, 
and  who  shall  stand  firm  as  the  rock  of  ages — firm  as  truth  itself — 
stand  forth  to  the  world  sustained  by  the  evidence  upon  which  your 
verdict  shall  be  founded.  And  believing,  as  I  do,  that  ours  is 
the  cause  of  truth,  I  firmly  believe  that  the  cause  of  the  prosecu- 
tion is  untrue  ;  and  I  am  sorry  to  say,  that  I  firmly  believe  a  large 
portion  of  it  is  not  only  untrue,  which  implies  mistake  and  misap- 
prehension, but  I  hope  I  shall  not  be  suspected  of  a  want  of  ch.irity, 
when  I  say  that  I  believe  a  large  portion  of  the  case  is  utterly  alse ; 
and  I  desire  the  word  to  be  understood  in  its  legitimate  and  strong- 
est sense.  I  believe  it  is  sought  to  be  upheld  by  a  combination  of 
the  rankest  perjury  that  was  ever  brought  into  a  court  of  justice 
since  the  sun  shone  on  Christendom. 

This  case,  gentlemen,  involves  not  only  the  life  of  a  fellow-being, 
but  the  highest  interests  of  two  great  nations,  in  the  two  hemi- 
spheres, which  hold  the  first  rank  in  all  Christ,endom — one  common 
people,  speaking  one  common  language  ;  a^'the  object  of  this 
prosecution  is,  to  involve  these  two  nations  in'  a  bloody  war.  Be- 
lieving this — and  I  doubt  the  power  of  my  learned  adversaries,  able 
as  they  are,  to  convince  me  that  such  is  not  the  character  of  the 
prosecution,  and  that  such  are  not  the  reasons  and  the  motives  for 
its  being  brought — I  confess  frankly,  I  felt  little  charity  for  those 
who  sought  to  take  the  life  of  McLeod.  Such  must  be  my  apology 
for  any  feeling  which  may  have  been  exhibited  in  conducting  this 
defence. 

I  took  occasion,  gentlemen  of  the  jury,  in  opening  this  defence, 
to  state  to  you  that  it  would  be  twofold — the  one  founded  entirely 
on  the  broad  ground  that  the  killing  of  Durfee  was  not  murder  in 

32 


)  I 


1' 


.'   "fell 


I' 


it 


■4 


V 


%'A 


P"^'  ■ 


,:iA' 


250 


GOULD'S   nKPORTER, 


any  one — that,  by  the  law  of  nations,  in  the  exertion  of  the  public 
force  of  a  country,  those  acting  in  obedience  to  the  comninnd  of 
their  superiors,  in  the  discharge  of  a  duty  which,  from  the  circum- 
stances of  the  case,  seems  to  devolve  upon  them,  arc  not  subject 
to  arraignment  and  trial  as  murderers,  though  the  discharge  of  that 
duty  be  hostile  in  its  nature,  and  calculated  to  destroy  the  life  of  a 
fellow-being.  That  defence,  gentlemen  of  the  jury,  whet'icr  right 
or  wrong — whether  it  would  or  would  not  have  been  entirely  con- 
clusive, if  admitted — has,  by  the  direction  of  the  learned  judge  who 
presides  over  our  deliberations,  been  excluded  from  our  view.  Of 
that  judgment  it  becomes  not  me  to  complain  ;  I  feel  no  desire  to 
complain  in  the  progress  of  this  trial. 

If  the  learned  judge  has  been  mistaken  in  the  decision  which  he 
has  pronounced,  in  excluding  testimony  which  we  in  this  argument 
cannot  introduce;  he  cannot  be  said  to  have  been  mistaken  without 
having  some  authority  in  his  favor ;  it  cannot  be  said  it  is  other 
than  an  error  which  has  arisen  out  of  Ihe  opinions  of  those  whose 
opinions  of  the  law  is  binding  and  obligatory  upon  the  judge  who 
presides  over  us.  I  take  occasion  to  allude  to  this  point  merely  to 
say,  that  with  that  decision  of  the  learned  judge  here,  I  am  not  dis- 
appointed. I  had  known  him  before — I  had  been  in  his  court  be- 
fore— I  had  known  the  habitual  respect  which  he  pays  to  the  decis- 
ions of  the  Supreme  Court  of  this  State,  and  properly  so.  I  have 
not,  therefore,  been  disappointed,  that  his  ruling  has  excluded  this 
defence  from  your  consideration.  What  then,  gentlemen  of  the 
jury,  remains  1  Are  we  without  defence  \  As  far  as  our  Supreme 
Court  have  decided,  though  the  Canadian  territory  had  been  in- 
vaded by  a  hostile  army,  which  had  established  a  provisional  gov- 
ernment, and  issued  a  proclamation  inviting  our  subjects  and  citi- 
zens to  come  to  their  standard ;  and  although  a  large  band  of 
American  citizens  had  rallied  to  this  standard  ;  though  our  arsenals 
had  been  rifled  of  their  contents  ;  and  though  the  arms  of  our  coun- 
try had  been  gathered  and  collected — batteries  erected  and  opened 
upon  the  Canadian  main  ;  yet,  if  the  subjects  of  Canada  thought  fit 
to  exert  their  power  to  overthrow  this  enemy,  and  in  the  exertion 
of  that  power  dared  to  put  their  feet  on  our  soil,  they  were  tres- 
passers ;  and  if  they  dared  to  take  the  life  of  an  American  citizen, 
they  were  murderers.  Although,  I  say,  the  Supreme  Court  of  the 
State  of  New  York  have  thus  decided,  have  they  swept  from  our 
possession  every  defence  which  can  be  relied  upon  for  the  safe  de- 
liverance of  McLeod  from  the  bonds  which  he  now  endures  1  No, 
gentlemen,  there  is  yet  another  remaining  ;  and  it  only  remains  for 
me  to  say  on  this  branch  of  the  subject — and  I  desire  it  to  be  un- 
derstood as  well  here  as  everywhere  else — that  I  have  no  belief,  no 
confidence,  in  the  doctrine  of  the  Supreme  Court  which  have  been 
promulgated  in  this  case.  I  shall  respect  it — I  shall  abide  by  it — 
and  I  shall  abide  the  decision  of  his  honor  here  ;  but,  if  needs 
be,  I  have  taken  the  precaution  to  be  able  to  review  the  decision 
of  his  honor  here,  and  to  secure  the  right  which  will  enable  me 
to  review  the  decision  of  the  Supreme  Court  elsewhere,  so  that,  in 
the  event  of  McLeod's  conviction,  if  the  Supreme  Court  have  been 


he  public 
iniaiul  of 
e  circum- 
3t  subject 
fre  of  that 
>  life  of  a 
ther  right 
ir>'ly  con- 
judge  who 
new.  Of 
)  desire  to 

which  he 
argument 
;n  without 
it  is  other 
ose  whose 
judge  who 
merely  to 
im  not  dis- 
}  court  be- 
the  decie- 
10.     I  have 
eluded  this 
men  of  the 
ir  Supreme 
id  been  in- 
sional  gov- 
;s  and  citi- 
e  band  of 
ur  arsenals 
f  our  coun- 
ind  opened 
thought  fit 
le  exertion 
T  were  tres- 
;an  citizen, 
ourt  of  the 
from  our 
he  safe  de- 
ires  1     No, 
remains  for 
it  to  be  un- 

0  belief,  no 

1  have  been 
>ide  by  it — 
it,  if  needs 
he  decision 

enable  me 
,  so  that,  in 
t  have  been 


Mcleod's  trial. 


•251 


mistaken — if  that  decision  should  not  be  in  accordance  with  the 
law  of  the  land,  it  may  be  reversed,  and  that  established  which  I 
believe  to  be  tbc  law  of  the  land — namely,  that  where  there  was 
such  a  war  being  corried  on,  between  the  British  (lovernment  and 
those  who  waged  it  on  our  side  of  the  waters,  the  British  (lovern- 
mcnt  might  properly  exert  its  power  to  put  down  that  war,  and  that 
those  who  acted  in  obedience  to  the  orders  of  that  government, 
discharged  their  duty  as  faithful  subjects  and  citizens,  and  are  not 
murderers. 

I  desire  it  to  be  understood  here,  in  this  court-house,  and  by  this 
audience,  as  well  as  in  this  nation,  and  throughout  Christendom — 
for  our  doings  interest  all  Christendom — that  I  do,  with  all  duo  re- 
spect to  the  Supreme  Court  of  the  State  of  New  York,  as  a  mem- 
ber of  the  bar  of  the  State  of  New  York,  protest  against  the  doc- 
trine which  has  been  promulgated  as  the  law  of  the  land.  It  is  not 
the  law  of  nations — it  is  not  the  law  of  reason— and  I,  for  one,  never 
will  submit  to  it  so  long  as  it  may  be  necessary  to  contend  against 
it  for  the  safety  of  McLcod.  On  this  trial  I  submit  to  it — 1  will 
abide  by  it; — 1  will  submit,  so  far  as  this  trial  is  concerned,  without 
complaint  and  without  murmur;  and  I  only  now  refer  to  that 
doctrine  of  the  Supreme  Court  of  the  State,  to  express  my  regret 
that  it  should  be  sent  forth  as  a  doctrine  springiijg  out  of  tin;  bw  of 
nations,  as  belligerents  in  the  afiairs  of  war.  The  remaining 
ground  of  defence  is  that  to  which  I  secondly  alluded  on  opening 
our  defence  to  you.  It  is  one  of  common  occurrence,  and  may  as 
naturallj'  arise  in  a  case  of  murder  as  in  any  other.  Sometimes  the 
books  say  it  is  a  defence  of  some  suspicion.  And  we  will  see  what 
suspicions  rest  upon  this  part  of  the  case,  before  we  close  the  re- 
marks which  we  have  proposed  to  submit  to  your  consideration. 
And  the  books  also  say,  when  it  is  established,  it  is  perfectly  con- 
clusive. 

His  honor  has  listened,  I  doubt  not,  to  this  portion  of  the  evi- 
dence with  all  the  attention  and  solicitude  which  his  duty  calls  upon 
him  to  bestow  ;  and  this  portion  of  the  defence  his  honor  will  tell 
you  you  must  alone  regard,  and  he  will  take  pains  to  exclude  from 
your  minds  any  consideration  which  can  influence  your  verdict, 
growing  out  of  the  law  of  nations.  Of  that  I  shall  make  no  com- 
plaint. When  you  advance  to  the  question  as  to  the  truth  of  the 
alibi,  for,  as  the  opinion  of  the  Supreme  Court  is  understood  by  his 
honor,  it  becomes  his  duty  to  charge  you  not  to  look  at  the  law  of 
nations  at  all,-  -you  will  look  beyond  that,  and  inquire  carefully 
and  seek  diligently  for  the  truth  as  it  shall  exist  in  other  portions 
of  the  defence  ;  and  when  you  have  found  it,  you,  gentlemen,  will 
embrace  it — yes,  gentlemen,  you  will  embrace  the  truth  in  this  case 
as  a  treasure,  and  regard  it  as  apples  of  gold  in  pictures  of  silver; 
for,  if  ever  it  were  desirable  that  truth  should  be  found,  it  is  now, — 
that  you  may  know  where  your  duty  lies. 

The  true  question  for  your  determination  is,  where  was  the  pris- 
oner at  the  bar  on  the  night  of  the  29th  of  December,  1837  1  If,  as 
it  has  been  proved  on  the  part  of  the  prosecution,  he  was  at  Chip- 
pewa, after  we  took  him  from  there — if  he  made  a  portion  of  the 


',i 


5H.r» 


,*"' 


v4. 


252 


GOULD'S    REPORTER. 


iittnckiiip  pnrty — if  ho  wn«  one  who  bonnlcd  the  Caroline  ot  the 
(lend  hour  of  midnight — thuii^li  hin  hniid  dciilt  not  the  death-bh>w, 
or  the  pistol  whicli  he  held  went  not  forth  the  deadly  bullet — yet,  if 
Diirfee  reeeivod  his  denlh,  it  is  murder,  and  all  those  who  were 
enpnped  in  the  enterprise  are  iiiiplicntcd.  You  are  to  inquire 
where,  in  reality,  was  AleLeod  at  that  time  I  Had  he  the  honor  or 
the  disijraeo  to  be  enpaped  in  that  expedition  I  If  he  had,  then, 
under  llie  law,  as  applied  to  this  caise,  I  confess  it  will  be  your  duty 
to  find  a  verdict  of  puilty.  When  I  make  this  eonfession,  I  must 
be  understood  as  refcrrinp  to  the  law  as  it  lias  been  laid  down  and 
established  by  one  of  the  hifrlier  tribunals  of  the  State  with  refer- 
ence to  this  ease,  but  not  as  1  believe  it  exists  in  tlie  Jirm  and  un- 
shaken principles  of  tlie  law  of  nations.  Tiiis  case,  gentlemen, 
presents  some  features  of  preat  peculiarity,  to  which  allusion 
should  be  made,  and  which  you  should  fully  understand  and  proper- 
ly appreciate. 

It  is,  that,  from  the  bepinninjy,  as  I  have  before  had  occasion  to 
mention,  long  before  the  trial  comtnenced,  nay,  nearly  a  year  ago  the 
main  features  of  our  defence,  with  nearly  every  attending  circum- 
stance were  fully  and  pnrrectly  known  to  the  counsel  for  the  prosecu- 
tion; not  indeed  to  the  learned  gentleman  who  now  has  it  in  charge, 
but  Jo  the  Counsel  for  the   people. 

And  further,  gentlemen,  long  since — a  month  ago,  or  nearly  a 
month  ago — our  defence  as  fur  as  respects  the  evidence  which  we 
have  produced  from  witnesses  in  Canada — so  far  as  respects  our 
evidence  taken  by  commission,  was  fully  and  perfectly  known — al- 
thougb  generally  speaking  such  evidence  should  be  known  to  our- 
selves only  ;  in  cases  of  a  high  criminal  nature  especially.  Yet  have 
we  been  driven  to  exhibit  to  the  world  as  well  as  to  the  counsel 
for  the  prosecution,  long  ago,  almost  every  word  of  that  evidence 
' — almost  every  word  of  our  defence  disclosing  every  minute  linea- 
ment of  our  defence  as  it  has  been  spread  out  before  you.  These 
depositions  were  in  the  hands  of  our  learned  adversaries  days  and 
days  before  their  witnesses  were  produced  upon  the  stand  here  to 
be  sworn  ;  and  every  word  of  those  depositions  had  been  read,  (or 
else  our  learned  adversaries  have  failed  to  do  their  duty,  which  we 
do  not  charge  upon  them  in  this  instance,)  and  what  has  been  the 
result  1 

Every  one  of  those  witnesses  produced  on  the  part  of  the  govern- 
ment has  had  conferences  with  the  learned  counsel  day  after  day,  and 
night  after  night  ;  and  they  have  had  these  conferences  with  others 
also;  with  the  counsel  it  wos  no  more  than  was  fit  and  proper,  to  be 
sure  it  was  the  business  of  counsel  to  have  a  previous  examination  of 
witnesses :  and  if  they  had  brought  them  forward  without  first 
ascertaining  what  their  witnesses  would  prove,  I  should  have 
no  hesitation  in  saying  that  they  were  guilty  of  a  dereliction  of  du- 
ty, but  I  have  no  such  belief. — If  I  had  brought  forward  witnesses 
without  knowing  what  they  would  testify,  I  would  blush  at  the 
omission  of  an  important  duty.  Neither  of  us  I  trust  have 
omitted  that  portion  of  our  duty.  This  becomes  a  high  responsi- 
bility of   counsel  in  trials  of  this  character  and  importance  j  but  1 


ICI,KOD  8   TRIAL. 


253 


e  (it  the 
th-blow, 
—yet,  if 
»o    were 

inquire 
lu>m>r  or 
nd,  then, 
our  duty 
n,  I  must 
lown  nnd 
th  refer- 
\  and  un- 
MitlcMncn, 

iilluHion 
d  proper- 

cnsion  to 
ir  ago  the 
T  circutn- 
!  prosecu- 
in  charge, 

nearly  a 
which  we 
pects  our 
nown — al- 
,vn  to  our- 

Yet  have 
counsel 

evidence 
jute  linea- 
These 

days  and 
here  to 

read,  (or 

which  we 

been  the 

le  govern- 
T  day,  and 

ith  others 
oper,  to  be 

ination  of 

lOut  first 
ould  have 
ion  of  du- 

witnesses 
ish  at  the 
rust   have 

responsi- 
,ce ;  but  1 


nUude,  Ronthimnn  of  the  jury,  to  the  fact  tliat  the  witncBsen  for  the 
prosecution  hnv«!  been  roiiverNod  with  ^y  other  perHons  than  their 
counsel  ;  I  am  well  convinced  of  thiii  (act. 

This  trial  has  not  gone  forward  without  having  eyes  open  to  nee 
abroad,  without  having  earsi  open  to  hear;  and  i  have  reason  to  be- 
lieve that  there  have  been  what  may  be  called  t'otninittec-rooinH  \n 
this  city,  where  those  witnesses  have  congrc'gated,  nnd  where  they 
have  had  read  to  them,  if  unable  to  read  themselves,  from  time  to 
time,  a  report  of  the  evidence  which  had  been  given  in  the  case,  and 
where  they  have  had  their  niinds  prepared  for  the  part  which  they 
themselves  were  about  to  take  in  the  case.  And  you  may  be  assured 
there  was  not  one  of  thobe  witnesses  who  iiad  not  a  full  knowledge 
of  everything  material  in  the  depositions  from  Canada.  1  do  not 
believe  that  the  Attorney  General  or  any  one  in  this  city  has  done  it, 
but  do  you  suppose  that  the  learned  Attorney  General  for  the  State 
of  New  York,  that  the  District  Attorney  for  the  county  of  Niagara  ; 
that  the  District  Attorney  for  the  coimty  of  Oneida,  and  the  learn- 
ed counsel  from  Uufliilo,  who  was  himself  one  of  the  committee 
of  vigilance — do  you  suppose  that  these  are  the  only  persons  enga- 
ged as  counsel  to  uphold  this  prosecution — do  you  suppose  that  they 
are  the  only  four  engaged  in  upholding  this  prosecution  ?  If  you  do 
I  desire  that  such  a  misconception  should  be  removed  from  your 
minds.  These  four  gentlemen,  learned,  able,  and  eloquent  as  they 
are,  are  but  the  corporal's  guard  of  the  army  of  conductors  of  the 
prosecution,  which  spreads  itself  from  one  of  the  frontier  to  the 
other. 

Generals,  colonels,  captains,  soldiers,  all  have  lent  their  aid  here 
and  their  missives  have  been  sent  forth  in  nil  directions. — The  post- 
office  department  has  been  made  stibservient  to  their  purposes  ;  se- 
cret communications  have  been  successfully  kept  up,  and  no  efTort 
has  been  left  unexerted  which  was  calculated  to  secure  the  convic- 
tion of  McLeod — and  for  what  ?  Not,  certainly,  that  they  desire 
the  blood  of  an  innocent  man  should  be  shed  on  the  scaffold,  but  that 
the  two  countries  should  be  involved  in  war,  and  that  these  persons 
who  cannot  on  account  of  their  offences  return  to  their  own  country, 
may  by  that  means  be  enabled  again  to  enter  Canada,  though  not  as 
the  vanguard,  yet  as  the  rearguard  of  an  American  army,  for  the 
purpose  of  wresting  it  from  British  dominion. 

How  does  it  happen,  if  this  be  not  true,  that  fresh  witnesses 
spring  up  on  all  sides  like  hydras,  gathering  fresh  strength  as  the 
cause  proceeds  1  I  do  not  speak  without  authority  ;  for  after  the 
evidence  was  closed,  and  the  learned  Attorney  for  the  District  of 
Niagara  was  about  to  leave,  I  desired  him,  in  all  frankness,  to  declare 
what  witnesses,  who  appeared  on  this  trial,  ever  appeared  on  any 
former  occasion,  when  the  case  was  under  examination.  And  he 
was  compelled  to  acknowledge  that  they  were  exceedingly  few  com- 
pared with  the  whole  number.  How  then,  gentlemen,  does  it  hap- 
pen that  in  every  successive  movement  of  this  trial,  new  witnesses 
spring  up  1  if  it  be  not  that  an  army  such  as  I  have  mentioned  are  at 
work — not  for  the  purpose  of  eliciting  truth,  but  of  aggregating 
falsehood,  till  they  add   so  much  weight  to  falsehood  itself  as  to 


\u 


ill, 

11 . 


,1U     .\ 


f' 


»,1 


jiii    ' 


i 

. 

,j--  i 

Pi"> 

'i^  1 

1           ' 

Mil 

Ijil 

'tk 

ijiiil;' 

254 


Gould's  reporter. 


i 


l:ii 


E   ?! 


give  it  an  overwhelming  power  to  crush  the  truth  in  its  onward  pro- 
gress. 

Why,  gentlemen,  we  have  not  been  unmindful  of  who  has  been 
sworn  on  former  occasions ;  there  was  in  the  first  instance  an  ex- 
amination before  Squire  Bell, — nay,  I  will  go  farther  back,  to  the 
time  when  witnesses  appeared  before  the  grand  jury  of  the  county 
of  Ningara,  in  1838,  shortly  after  the  burning  of  the  Caroline,  to 
charge  certain  persons,  residents  of  Canada,  with  the  oflcnce.  We 
have  been  furnished  with  a  copy  of  the  testimony  on  that  occasion. 
There  was  also  an  examination  before  Judge  Bowen  of  the  county 
of  Niagara.  You  have  heard,  I  dare  say,  gentlemen,  of  these  ex- 
aminations, and  of  the  names  of  the  five  witnesses  who  gave  testi- 
mony on  those  occasions.  But  here,  gentlemen,  we  have  had  a 
cloud  of  witnesses — thirty-three  have  been  examined  on  this  trial — 
and  in  the  nature  of  their  testimony  there  has  been  a  great  and 
radical  chaiiire.  And  think  you  that  these  thirtjr-three  who  have 
been  examined  on  the  part  of  the  government  compose  the  whole 
army  ]  Why,  gentlemen,  there  is  a  corps  de  reserve,  which  far  out- 
numbers all  who  have  been  brought  forward  into  immediate  action 
in  the  fighting  of  this  battle.  This  intelligence  came  to  our  knowl- 
edge long  ago,  it  was  legitimately  within  our  possession,  and  we 
have  come  up  to  it  in  our  preparation,  although  our  learned  adver- 
saries never  condescended  to  declare  to  us  who  their  witnesses  were. 

The  learned  counsel  for  the  prosecution  have  withheld  all  knowl- 
edge of  .what  witnesses  were  before  the  grand  jury  at  Niagara. 

The  Attorney  General — I  am  sure  the  learned  counsel  does  not 
mean  to  represent  that  the  names  of  our  witnesses  were  withheld 
from  him.  The  names  of  those  who  were  sworn  before  the  grand 
jury  were  communicated  to  Mr.  Bradley. 

Mr.  Spencer — Yes,  they  were  communicated  at  a  very  late  day 
to  Mr.  Bradley.  The  complaint  is,  that  few  of  the  witnesses  pro- 
duced here  are  those  of  whom  we  have  any  knowledge. 

Upon  those  examinations  before  Squire  Bell  and  Judge  Bowen, 
were  the  principal  witnesses  to  prove  the  alibi.  They  were  exam- 
ined and  though  not  so  fully  nor  so  carefully,  as  in  a  court  of  jus- 
tice, still,  they  gave  the  leading  features  of  the  case  as  it  exists  on 
our  side,  and  so  strong  was  the  evidence  before  Judge  Bowen, 
showing  that  McLeod  had  no  participation  in  the  affair,  that  he  de- 
termined to  release  him  on  his  recognizance  for  his  appearance. 
But  as  it  happens  in  that  district  of  the  country,  an  appeal  lies  from 
a  judicial  officer  to  a  popular  assembly.  Thank  heaven,  we  have 
no  evidence  that  such  an  apped  will  be  brought  here,  or  if  brought, 
that  it  will  be  entertained.  No  artillery  or  martial  music,  will  be 
brought  here — no  artillery,  will^be  planted  in  front  of  the  prison- 
door  to  coerce  us  in  our  decision— no  midnight  mob  assembled  to 
the  notes  of  martial  music,  has  the  power  to  exert  an  influence  over 
OUT  deliberations ! 

You  have  an  easier  duty  to  perform  than  had  Judge  Bowen  on 
that  occasion.  You  will  have  it  in  ypur  power  to  open  the  prison- 
doors,  and  set  the  captive  free  ;  if  in  your  deliberate  judgments,  you 
determine  tba*  justice  requires  that  you  should  do  so,  without  fear 


irard  pro- 
has  been 
;e  an  ex- 
k,  to  the 
le  county 
roline,  to 
ice.     We 
occasion. 
^e  county 
these  ex- 
rave  testi- 
ve  had  a 
Ills  trial — 
trreat  and 
who  have 
the  whole 
;h  far  oul- 
ate  action 
)ur  knowl- 
m,  and  we 
led  adver- 
sses  were, 
all  knowl- 
igara. 
1  does  not 
e  withheld 
the  grand 

•y  late  day 
esses  pro- 
re  Bo  wen, 
rere  exam- 
urt  of  jus- 
exists  on 
Bowen, 
that  he  de- 
ppearance. 
lies  from 
n,  we  have 
if  brought, 
ic,  will  be 
the  prison- 
embled  to 
lence  over 

Bowen  on 
the  prison- 
tnents,  you 
ithout  fear 


MCLEOD'S   TRIAL. 


235 


of  popular  tumult :  and  it  is  your  duty — ;justice  requires  it,  without 
the  fear  of  outrage  from  the  populace  assembled  for  the  purpose  of 
murder  and  rapine.  You  will  be  able  to  render  your  verdict  as  the 
result  of  your  deliberate  considerations — you  will  not  feel  yourselves 
called  upon  as  did  that  hijrh  functionary,  to  apologise  for  the  de- 
liberate judgment  which  you  have  formed.  No,  gentlemen,  Utica, 
Oneida,  New  York,  America,  itself,  I  hope,  will  be  saved  from  an- 
other exhibition  so  disgraceful  to  our  country  and  our  laws. 

Thus,  gentlemen,  you  perceive  that,  from  the  beginning,  t'ae  op- 
posite counsel  have  been  possessed  of  our  whole  case,  and  every 
witness  has  been  well  informed  of  it,  and  I  challenge  any  man  of 
ordinary  capacity,  to  wink  so  hard  as  not  to  see  thai  these  witnesses 
have  shaped  and  framed  their  teiitimony  in  conformity  to  the  case. 
They  knew  the  exact  time  when  our  testimony  takes  McLeod 
from  Chippewa,  and  returns  him  there  ;  they  knew  full  well  the 
testimony  which  fills  up  the  intermediate  space  fr(  ."n  the  moment 
when  he  left  Chippewa,  until  he  returned  there  again.  And  hence 
the  whole  strength  of  the  prosecution  has  been  brought  to  show 
that  our  testimony  is  false,  and  conjured  up  for  the  sake  of  saving 
the  life  of  an  individual ;  while  on  the  other  hand,  the  evidence  on 
the  part  of  the  prosecution  is  true  as  holy  writ.  These  witnesses 
from  the  ends  of  the  earth,  come  like  angels  of  heaven  to  speak  the 
truth,  as  if  the  light  of  heaven  was,  by  their  voices,  to  be  reflected 
upon  the  case  befone  you,  and  you  are  not  to  doubt  that  it  is  all 
true.  If  so,  take  it,  and  give  your  verdict,  and  answer  to  your 
country  for  the  consequences. 

But  if  I  do  not  mistake  the  evidence,  and  my  own  feeble  powers 
in  unravelling  evidence,  I  shall  be  able  to  show  you  that  it  has  been 
made  up  of  the  blackest  perjury  that  was  ever  brought  to  bear  upon 
atrial.  Indulge  me,  gentlemen,  in  another  channel  of  remark,  be- 
fore I  come  to  the  unpleasant  duty  of  examining  these  witnesses 
one  by  one.  It  is,  gentlemen — and  it  is  not  the  first  time  that  I  have 
said  It — that  there  can  be  no  truth  whatever  in  the  one  side  or  the 
other  of  this  case.  It  presents  a  singular  instance  that  it  is  impos- 
sible for  human  ingenuity  to  reconcile  that  both  are  true,  or  both 
may  be  believed  to  be  true,  so  as  to  furnish  an  apology  for  witness- 
es who  have  been  brought  to  sustain  one  side  or  the  other — it  is 
impossible. 

To  Him  alone  who  gave  us  our  existence,  can  be  ascribed  the  at- 
tribute of  ubiquity.  While  tabernacled  in  clay,  we  are  limited  to  a 
single  spot  at  the  same  instant  of  time.  No  man  is  able,  while  thus 
living,  to  be  at  Chippewa  and  at  Stamford  at  the  same  moment. 
McLeod  was  not  at  Stamford  at  all,  if  he  had  the  slightest  par- 
ticipation in  the  destruction  of  the  Caroline,  or  in  taking  the  life  of 
Durfee.  He  was  not  at  Chippewa  on  the  night  of  the  29th  of  De- 
cember, 1837,  if  he  were  at  Stamford,  as  we  maintain  he  was.  It 
follows,  therefore,  gentlemen  of  the  jury,  that,  painful  as  must  be 
the  duty,  you  cannot  escape  its  discharge;  you  must  find  that  ei- 
ther the  one  side  or  the  other  of  the  evidence  which  has  been  ad- 
duced before  you  is  utterly  false — a  sheer  fabrication,  got  up  to 
answer  the  purposes  of  the  present  trial.     Now,  gentlemen,  allow 


f1 

■:'1 

% 


.    I 


h^\ 


I 


0 


W':i:- 


11 ' 


256 


GOULD'S   REPORTER. 


m 


m 


me  to  ask  what  motive  could  there  be,  for  the  witnesses  on  the 
part  of  the  defence,  to  come  forward  and  fabricate  falsehoods, 
while,  on  the  other  hand,  you  have  seen  exhibited  in  those  witness- 
es, again  and  again,  motives  strong  in  death,  to  give  success  to  this 
prosecution,  that  their  own  darling  object  of  involving  our  country 
in  a  war  with  Great  Britain  may  be  accomplished.  I  charge  it  upon 
them  unhesitatingly.  With  few  exceptions,  if  any,  I  believe,  most 
solemnly,  that  they  are  every  one  of  them  engaged  in  the  enterprise 
which  by  many  has  been  called  the  patriot  enterprise,  wliich  has 
been  undertaken  to  get  up  a  war  and  carry  it  into  Canada.  All  their 
witnesses  are  of  this  character  and  description  ;  if  there  are  any 
exceptions  they  do  not  occur  to  me  at  this  moment.  Many  of  them 
are  members  of  those  secret  lodges,  of  whose  objects  and  purposes 
we  are  ignorant.  And  I  am  not  addressing  men  who  can  inform 
me  of  their  objects.  They  themselves  know,  and  they  keep  the  se- 
crets, except  so  far  as  their  public  exhibitions  disclose  them.  Bound 
by  frightful  oaths  to  act  in  concert  for  the  accomplishment  of  that 
which  they  dare  not  disclose,  for  fear  of  being  subjected  to  punish- 
ment by  the  laws,  they  certainly  cannot  complain  of  us  if  we  judge 
of  them  by  their  fruits.  And  what  are  those  fruits  1  In  the  first 
place,  the  contribution  of  money,  which  is  the  sinew  of  war,  to  carry 
on  their  unholy  purposes  ;  next,  the  contribution  of  personal  ser- 
vices, encountering  danger,  and  cold,  and  hunger  ;  also  the  contri- 
bution of  food  and  raiment,  munitions  of  war — *very  species  of  ma- 
t'^rial  necessary  to  carry  on  war  against  our  neighbors. 

All  this  has  been  done  by  these  men  who  compose  these  secret 
societies.  Can  you  desire  to  have  stronger  evidence  than  the  very 
secrecy  of  their  proceedings.  These  men  dare  not' give  publicity 
to  their  doings  j  but  they  are  kept  a  profound  secret,  under  the 
sanction  of  an  unholy  oath.  Does  virtue,  truth,  and  true  hone^y 
and  patriotism,  require  this  :  that  a  man's  motives  should  be  buried 
in  the  dark,  or  locked  up  in  impenetrable  obscurity  1  No,  gentle- 
men ;  virtue  and  honesty  need  no  concealment.  A  virtuous  action 
may  be  performed,  without  putting  him  who  performed  it  to  the 
blush- — without  exciting  one  uneasy  moment.  But  these  men  take 
the  witness-stand,  and  on  their  oaths  declare  that  they  dare  not  con- 
fess the  natur*?  of  their  society's  oaths,  for  fear  it  should  expose 
them  to  a  criminal  prosecution  ;  and  yet  they  expect  to  obtain  cre- 
dence from  an  intelligent  jury  !  Tell  it  not  in  Gath;  publish  it  not 
in  the  streets  of  Askelon  ! 

No  such  thing  will  ever  find  belief  in  the  honest  heart  of  an  in- 
telligent man.  These  men,  gentlemen,  who  have,  by  their  oaths 
and  associations,  given  protection  and  security  to  a  notorious  felon 
who,  after  conviction,  had  escaped  from  punishment  before  he 
reached  the  state-prison,  take  the  stand  and  declare  that  they  dare 
not  confess  it,  and  yet  come  into  a  court  of  justice,  and  ask  you  to 
believe  their  story.  Yes,  the  witness  Wilson,  who  kept  the  ferry, 
not  across  the  river  Styx,  but  across  the  Niagara,  and  who  man- 
aged, not  Charon's  boats,  but  his  own,  could  give  free  passage  to 
the  felon  Lett,  that  he  might  burn  and  destroy  the  property  of  the 
peaceable  inhabitants  ;  that  he  might  murder  the  lamented  Usher  ; 


5  on  the 
sehoods, 

witness- 
ss  to  this 
'  country 
e  it  upon 
!ve,  most 
nterprise 

l)ich  has 

All  their 
I  are  any 
y  of  them 

purposes 
in  inform 
ep  the  se- 
I.  Bound 
n  of  that 
to  punish- 

\ve  judge 
I  the  first 
r,  to  carry 
sonal  ser- 
he  contri- 
ies  of  ma- 

ese  secret 
1  the  very 
;  publicity 
under  the 
le  hone^y 
be  buried 
o,  gentle- 
ous  action 
it  to  the 
men  take 
re  not  con- 
ild  expose 
)btain  cre- 
ilish  it  not 

of  an  in- 
leir  oaths 
ious  felon 
before  he 
they  dare 
isk  you  to 
the  ferry, 
who  man- 
)assage  to 
rty  of  the 
ed  Usher ; 


MCLEOD'S   TRIAL. 


25- 


that  he  might  destroy  the  monument  of  Sir  Isaac  Brock  ;  that  h<> 
might  set  fire  to  steamboats,  and  destroy  the  lives  of  innocent  per- 
sons. But  alas !  that  celebrated  captain-general  in  the  army  of  the 
prosecution  has  been  lost  to  them,  and  they  have  bitterly  felt  tlie  sting 
of  their  mortification.  These  are  the  witnesses  ;  these  are  the  con- 
stituent parts  of  that  gallant  and  virtuous  combination  of  leries, 
who  come  forward  to  take  away  the  life  of  an  innocent  man,  iliink- 
ing  to  claim  belief  from  an  intelligent  jury.  I  am,  gentlemen  of  the 
jury,  really  at  a  loss  to  determine  what  1  ought  to  do  with  respect 
to  the  duty  which  I  owe  to  this  cause  and  to  you.  Ordinarily,  I 
should  feel  called  upon  to  enter  miruitely  into  the  evidence  which 
has  been  given  to  uphold  the  prosecution.  But  ?o  much  time  ha- 
been  consumed — so  many  draughts  have  been  made  upon  your  pa- 
tience, that  I  hardly  dare  enter  into  the  thankless  office  of  com- 
menting on  the  evidence  of  the  witnesses  seriatim.  But  not  being 
able,  gentlemen,  to  discover,  among  you  twelve,  though  some  of 
you  are  well  known  to  me,  any  window  which  opens  a  view  to 
your  hearts,  and  as  long  as  there  is  a  shadow  of  a  possibility  that 
you  are  not  fully  satisfied,  I  shall  feel  compelled  to  proceed,  that  no 
shadow  of  doubt  may  remain. 

I  will  promise  you  as  much  brevity  as  I  am  able,  in  examining  a 
few  witnesses,  until  I  come  to  those  who  connect  JMcLeod  with  the 
transaction.  I  shall  dispose  of  the  whole  at  a. glance,  who  were 
connected  with  the  steamboat  at  the  time  of  its  destruction.  It  is 
enough,  in  thus  glancing,  to  say  that  they  came  here  with  no  in- 
tention to  disclose  fully  and  fairly  the  whole  truth. 

Take  the  first  witness,  Wells  :,  Did  he  come  here  with  an  honest 
intention,  and  freely  and  frankly  give  you  the  honest  truth,  the 
whole  truth,  and  nothing  but  the  truth  1  Upon  his  direct  examina- 
tion, it  appeared  that  his  only  purpose,  in  fitting  out  his  boat,  was 
for  the  sake  of  private  gain,  giving  a  little  scope  to  the  enterprise 
which  naturally  distinguishes  an  eastern  man — an  enterprise  under- 
taken for  his  own  individual  emolument. 

Such,  gentlemen,  was  the  plausible  appearance  of  this  witness's 
testimony  on  his  direct  examination.  Was  this  true,  or  was  it 
false  1  You  saw  with  what  reluctance  he  admitted  one  fact  after 
another  in  his  cross-examination.  He  started  from  BufTalo  with 
this  steamer,  of  which  he  was  the  owner,  his  crew  consisting  of  a 
negro  and  a  boy,  and  so  exceedingly  enamored  was  he  of  the  mo'TP- 
ment  of  the  machinery,  that  he  stood  gazing  in  silence ;  and  it  is 
surprising  that  he  had  not,  while  beholding  with  such  intense  inter- 
est the  wonderful  operations  of  the  engine,  been  converted  into  a 
statue,  or  like  Lot's  wife,  into  a  pillar  of  salt.  Before  he  left  the 
stand,  a  few  facts  leaked  out,  like  rain-drops  after  a  long  drought, 
and  those  facts  were  quite  sufficient  to  overthrow  the  whole  of  his 
direct  testimony.  He  stands  utterly  impeached  and  convicted  of 
direct  perjury. 

When  a  man  takes  an  oath,  he  swears  that  he  will  Jell  the  whole 
truth  ;  and  when  his  direct  examination  closed,  he  had  not  told  the 
hundredth  part  of  the  material  truth.  Because,  first  when  he  stated 
that  his  resolution  was  to  carry  passengers  and  freight,  he  intended 

33 


>  11 

}  Ml^ 


!•  '  I. 


I    I 


'■^;;i, 


..i' 


258 


fVOUto's    REPORTKR. 


to  communicate  ihe  idea  to  the  jury  that  ordinary  freight  and  pas- 
sengers were  meant.  But  did  he  mean  that  !  if  he  did,  ther  the 
whole  of  his  testimony  is  as  false  as  the  Koran  ;  if  he  did  not  mean 
that,  he  was  guilty  of  a  prevarication  which  should  discredit  his 
whole  testimony.  Either  way  he  is  upon  the  horns  of  a  dilemma. 
But  it  came  out  th.it  he  had  carried  upward  of  one  hundred  aimed 
men — [where  was  the  evidence  of  tliat  I  said  the  Attorney-Genera!] 
— and  it  turns  out,  also,  that  before  he  brought  his  stenmboat  into 
the  employment  at  all,  ho  went  to  the  Island,  saw  General  Van 
Rensselaer,  Colonel  McKeuzie,  &c.,  and  the  result  was,  tho  (IttiniT  out 
the  boat  for  the  service  of  tlje  Navy  Islanders ;  and  he  was,  besides, 
referred  to  the  executive  committee,  composed  of  thirteen,  which 
is  spoken  of  as  having  a  commissary,  secretary,  and  chairman,  in 
Buffalo  ;  to  these  he  was  referred  to  conclude  the  details  of  the  ar- 
rangements. In  the  early  part  of  the  examination  he  knew  nothing 
of  a  bond  of  indemnity  ;  but  it  ultimately  turned  out  that  there  was  to 
be  a  bond  signed  by  twenty  of  the  executive  committee,  and  it  was 
at  last  actually  signed  by  five  of  them.  What  was  the  intention  of 
this  bond  I  To  indemnify  Mr.  Wells  for  the  expense  of  cutting  out 
and  repairing  his  boat,  and  against  all  risks  to  which  his  employ- 
ment in  the  service  of  the  brigands  would  expose  him.  This  was 
the  bond  which  should  have  been  furnished  by  this  committee  of 
safety,  who  had  the  honor  of  being  commissioners  between  the  Islr 
anders  and  this  contracting  party.  This  is  their  first  witness.  Let 
him  be  taken  as  a  specimen  of  the  whole  ;  and  see  if  you  cannot 
discover  reasons  and  motives  enough,  on  the  part  of  those  on  board 
the  boat,  for  describing  their  dangers  and  perils  with  a  little  more 
coloring  than  the  truth  would  warrant. 

I  will  pass  over  a  few  of  the  succeeding  witnesses,  and  will  ex- 
amine with  a  little  minuteness,  though  it  has  already  been  done 
with  much  ability  by  my  learned  associate,  the  evidence  of  those 
witnesses  who  connect  this  affair  with  the  killing  of  Durfee.  And 
that  there  may  be  no  confusion  in  the  matter,  we  will  take  them  up 
as  they  were  called ;  and  while  considering  this,  we  will  show 
that  every  one  of  these  witnesses  knew  perfectly  well  all  the  pur- 
poses of  the  enterprise.  I:et  us  examine  and  see  how  their  testi- 
mony reads.  Mr.  Spencer  here  recapitulated  the  evidence  of  Philo 
Smith,  of  Caswell,  and  of  Corson,  and  added,  all  these  witnesses 
have  been  acting  in  concert.  One  of  these  was  the  witness 
who  put  the  anxious  question  to  the  other,  "Will  the  evidence 
taken  by  commission  overthrow  that  taken  upon  the  stand  1" 
The  bar-tender  of  Smith  says,  he  "  saw  McLeod  only  once  that 
evening,  and  that  was  at  the  place  where  the  rails  were  burning. 
After  the  Caroline  was  on  fire  he  saw  two  or  three  boats  come  into 
the  cut,  and  having  some  friends  in  the  boats,  he  ran  down  to  the 
mill  where  the  three  boats  landed." 

Now  mark,  gentlemen,  three  boats  came  in — three  landed  ;  he 
had  some  acquaintances  on  board,  you  recollect,  and  he  came  within 
eight  or  ten  feet,  where  he  saw  that  McLeod  was  one  of  them. 
From  there  he  went  to  Davis's  tavern  with  the  party,  and  the  wit* 
ness  then  says,  they  were  debating  in  front  of  the  tavern  whether 


might 


# 


MCLEOD'S   TRIAL. 


259 


c: 


I  J 


ixnd  pas- 
til ei   the 
lot  ineati 
reflit  his 
dilemma. 
,>d  mined 
Genera!] 
boat   Into 
lernl  Van 
ittinsT  out 
;,  besides, 
en,  which 
irman,  in 
of  the  ar- 
IV  nothing 
ere  was  to 
ind  it  was 
tention  of 
utting  out 
is  employ- 
Tliis  was 
imiltee  of 
:en  the  IsU 
ness.     Let 
fou  cannot 
e  on  board 
little  more 

[id  will  ex- 
been  done 
:e  of  those 
rfee.     And 
e  them  up 
will  show 
1  the  pur- 
their  testi- 
ce  of  Philo 
witnesses 
\e    witness 
evidence 
stand  1" 
once  that 
re  burning, 
come  into 
own  to  the 

landed  ;  he 
;ame  within 
fie  of  them, 
md  the  wit- 
rn  whether 


ihey  would  go  in  and  talcc  something  to  drink.  But  all  this  time 
he  had  not  broken  silence  ;  and  then  we  have  the  singular  fact  of 
the  soldiers'  saying,  "  No,  we'll  not  go  in  here,  we  have  our  bar- 
tender with  us;  we  will  go  back  and  have  something  at  Philo 
Smith's." 

These  three  or  four  or  five  soldiers  then  separated  from  their  par- 
ty, and  went  home  with  the  witness  to  take  somcfhino;-  to  drink, 
lint  the  witness  does  not  stop  here.  Why  not  !  I  will  give  you 
the  reason — first,  because  the  darkness  of  the  night  would  greatly 
weaken  his  statement,  as  there  might  have  been  a  littio  doubt  about 
identifying  the  prisoner.  He  goes  on  to  say,  that  he  saw  McLeod 
the  next  morning  about  daylight,  and  speaks  of  his  being  wounded. 
Smith's  tavern,  he  says,  is  on  one  side  of  the  public  square,  and 
Davis'  on  the  other,  at  six  or  eight  rods  distance.  Witness  looked 
out,  he  says,  and  saw  McLeod  across  the  square,  and  recognized 
liim.  But  when  he  went  over  to  speak  to  him  he  was  gone,  and . 
f.ould  nowhere  be  found,  although  the  witness  sought  him  carefully 
(perhaps  not  with  tears) ; — he  did  not  afterward  find  him,  or  see 
!iim  at  all  that  morning.  This  Samuel  Drown  is  the  same  man  who, 
when  he  was  summoned  last  winter  to  go  to  Lockport  to  give  evi- 
dence, said  he  knew  nothing  which  could  beneficially  afifect  either 
McLeod  or  the  people,  and  for  that  reason  refused  to  go.  And  now 
what  is  his  p»idence  produced  for, — to  satisfy  your  minds  that  Mc- 
Leod was  at  Chippewa — that  he  was  in  the  boats  which  formed  the 
expedition. 

This  is  the  same  Drown  who  now  tells  you  that  he  saw  McLeod 
lirst  by  the  light  of  the  beacon  ;  that  he  came  within  eight  or  ten 
feet  of  him  at  the  boat  ;  and  in  the  darkness  of  midnight,  and  in 
the  shade  of  those  willow  trees,  his  vision  was  such,  that  he  asks 
you  now  to  say  upon  oath  that  McLeod  was  the  man  he  saw  there, 
and  that  therefore  you  should  hang  him.  He  asks  you  to  believe 
that  he  looked  out  in  the  gray  of  the  morning  and  saw  McLeod; 
and  he  wants  you  to  believe,  also,  that  he  was  not  at  Stamford,  and 
not  being  there,  that  you  should  hang  him,  on  the  oath  of  this  same 
Samuel  Drown.  Is  this  the  testimony  upon  which  to  find  a  man 
guilty  of  a  capital  offence  1 

It  is  enough,  if  true,  I  will  admit,  and  the  Attorney  General 
might  have  abandoned  all  other  proof.  But,  gentlemen,  we  main- 
tain that  this  Samuel  Drown  cannot  command  your  belief.  It 
is  a  singular  fact,  but  so,  by  the  eternal  laws  of  our  creation,  will 
the  fact  always  remain,  that  when  a  witness  comes  forward  and 
commits  a  wilful  perjury,  he  never  covers  the  whole  ground — 
never.  He  will  always  have  some  awkward  feature  in  it,  which 
might,  by  perjury,  as  well  be  supplied  as  not.  A  man  committing 
perjury  has  unlimited  means  at  his  command — he  will  avail  himself 
of  some  known  and  admitted  circumstance  which  he  can  speak  of 
and  which  will  prove  to  be  true,  and  with  this  he  will  connect  the 
falsehood.  Now  what  is  the  reason  of  this  1  I  will  fui-nish  you 
with  the  best  reason  I  am  able,  after  several  years'  experience  in  the 
trial  of  causes.     I  say  it  with  humiliation,  but  we  never  witness  the 


:i' 


■I 
■'■\'  It ' 

■ 

;       1 

1' 

:     1 
.4 

f 

1' 

t   , 

^ 


tetr    ' 


260 


GOULDS    REPORTER. 


sitting  of  a  court  for  the  trial  of  causes,  where  we  do  not  wiuics- 
deliberate  perjury.  You  need  not  be  surprised  then,  p^entlemen. 
that  there  should  be  perjury  upon  this  trial.  The  reason  is  this  : 
as  to  the  omission  to  fill  up  the  given  niche,  it  affords  an  opportu- 
nity to  the  learned  counsel  to  say,  why,  would  it  not  have  been  jus.t 
as  easy  to  fill  up  that  niche  1  He  has  therefore  furnished  you  an  argu- 
ment that  he  has  not  been  guilty  of  perjury.  This,  gentlemen,  is 
one  of  the  subterfuges  to  which  felons  resort,  in  order  to  lay  hold 
on  public  confidence  and  command  belief.  If  he  speak  as  to  one 
important  fact  which  's  corroborated  by  others,  so  much  of  his  story 
is  true,  and  having  lOid  the  truth  with  regard  to  one  circumstance, 
lie  argues  that  it  is  reasonable  to  presume  that  the  rest  of  the  story 
is  true  also.  These  are  the  ordinary  supports  which  a  perjured 
witness  will  always  call  to  his  aid,  in  order  to  command  belief. 
How  is  it  with  regard  to  the  testimony  of  Samuel  Drown  1  It  is 
perfectly  true  there  were  boats  which  passed  through  the  cut  and 
went  up  the  Niagara  River,  and  it  is  also  true  that  a  part  of  the  ex- 
pedition came  up  to  Davis'  tavern  afterward.  Though  there  is  a 
discrepancy  as  to  the  number  of  boats,  and  it  would  also  have  been 
as  easy  for  him  to  state  that  he  saw  McLeod  at  Davis'  the  next 
morning,  as  to  say  that  he  saw  him  across  the  public  square,  leavina 
something  to  be  supplied  by  other  witnesses.  I  pronounce  the  whole 
of  this  testimony  to  be,  in  my  deliberate  judgment,  a  sheer  fabri- 
cation. 

Now  with  respect  to  Corson.  He  begins  by  saying  that  he  saw 
McLeod  at  Macklem's  at  four  o'clock  in  the  afternoon.  Well,  we 
have  no  evidence  to  show  that  this  may  not  be  true,  but  see  how  he 
alludes  to  this  circumstance  to  give  plausibility  to  his  story,  and 
obtain  for  it  credence.  He  has  failed  to  mention  a  single  human 
being  who  was  with  him  at  Macklem's  store  tow'itness  the  interview 
of  which  he  speaks.  Why  does  he  bring  in  the  names  of  Drew, 
Mosier,  and  Usher  1  He  speaks  of  the  unfortunate  Usher  who,  a 
year  afterward  was  murdered  at  midnight,  at  his  own  door,  as  you 
have  all  heard — a  man  w^ho  was  understood  to  be  one  of  the  party 
engaged  in  taking  the  Caroline,  and  who,  for  that  reason,  paid  the 
forfeit  of  his  life  to  the  midnight  assassin,  when  he  rose  from  his 
bed  to  answer  the  call  of  a  voice  which  he  knew  to  be  that  of  his 
neighbor.  This  Usher  was  vouched  as  one  who  was  present  upon 
the  expedition.  Mosier  was  vouched  as  another,  and  Drew  as  an- 
other, in  this  man's  testimony;  and  why  I  because  he  saw  these 
persons  in  Macklem's  store  in  conversation  with  McLeod.  Now 
what  would  he  have  you  believe  from  this  unsupported  testimony  ■? 
Why,  he  would  wish  to  fasten  upon  your  hearts  and  understandings 
the  conviction  that  McLeod  was  a  partaker  in  that  enterprise,  be- 
cause he  swears  that  he  saw  him  engaged  in  confidential  conversa- 
tion with  those  men,  who  confessedly  formed  a  part  in  it.  Is  not 
this  his  expectation  1  Surely  it  is.  And  yet  you  will  have  to  fornj 
this  conclusion  against  the  united  testimony  of  McNab,  who  com- 
manded the  performance  of  the  act ;  of  Drew,  who  executed  it,  in 
obedience  to  that  command;   and  of  Harris,  who  acted  under  tli.e 


MCLEOD  S    TRIAL. 


261 


itlemen. 
1  is  this  : 
opportiJ- 
)een  ju&t 

anJirgii- 
letneii,  is 

lay  hold 
IS  to  one 
his  story 
imstance, 
the  story 

perjured 
nd  belief, 
•n  1  It  is 
e  cut  and 
)f  the  ex- 
there  is  n 
have  been 
i'  the  next 
:e,  leavinsT 

the  whole 
leer  fabri- 

hat  he  saw 
Well,  we 
',ee  how  he 
I  story,  and 
gle  human 
5  interview 
of  Drew, 
ler  who,  a 
or,  as  you 
the  party 
1,  paid  the 
e  from  hi? 
that  of  hii^ 
esent  upon 
Tew  as  an- 
saw  these 
lod.      Now 
;estimony '' 
irstandings 

rprise,  be- 
conversa- 
it.     Is  not 

ive  to  fornt 
who  com- 

[cuted  it,  in 
under  th.e 


.lirections  of  captain  Drew.  And  you  must  recollect  the  parties 
were  in  a  public  store  contemplating  a  project  which  required  se- 
crecy to  insure  its  success.  And  you  are  called  on  to  believe  that 
men  so  engaged  would  publish  on  the  house-tops  the  subject  of 
their  consultation.  Gentlemen,  I  give  you  my  full  assent  to  believe, 
if  you  are  able,  the  statements  of  Isaac  P.  Corson.  Then  he  says, 
lie  saw  McLeod  again  on  the  '29th  of  December,  in  the  evening. 
Well,  I  inquired  what  pretence  he  had  to  know.  He  said  he  met 
him  at  the  door.  The  man  he  met  coming  from  the  light,  he  going 
toward  it.  Well,  it  would  have  been  easy  to  say  that  he  went  over 
to  Davis'  and  saw  him  there,  and  spoke  to  him  ;  this  would  have 
been  just  as  easy,  but  it  would  have  been  more  suspicious.  To  say 
he  met  him  at  the  door,  seems  exceedingly  honest,  it  is  this  plan 
which  every  man  guilty  of  perjury  would  adopt  to  give  credibility  to 
his  story.  He  stated  also,  that  he  saw  him  again  the  next  morning, 
amid  a  crowd  of  persons,  and  heard  him  say  he  had  killed  one  or 
two  damned  Yankees.  He  could  see  at  this  time  only  McLeod,  al- 
rhough  there  were  a  number  of  persons  present,  and  he  could  hear 
only  what  was  said  by  McLeod,  and  no  one  else.  Now,  this  looks 
very  like  fitting  the  evidence  to  the  case.  It  was  important  to  find 
a  witness  who  would  swear  to  a  good  deal  of  materiality.  Unfor- 
tunately he  cannot  speak  as  to  what  any  one  ■said  but  McLeod, 
of  whom,  he  could  see  only  the  head  and  shoulders  projecting 
above  the  crowd. 

Now  gentlemen  there  is  another  matter  which  is  worthy  of  some 
note,  this  same  Isaac  P.  Corson  testified  at  a  later  period  of  his  cross 
examination  that  he  had  heard  of  the  arrest  of  McLeod,  and  of  his 
examination  before  Squire  Bell,  in  October  or  December,  IS-liO,  and 
it  so  happened  that  it  was  November;  and  he  knew  also  that  McLeod 
was  brought  before  Judge  Bowen  by  habeas  corpus  for  examina- 
tion, with  a  view  to  his  release,  and  during  all  this  time  this 
witness  never  opened  his  lips  with  respect  to  what  he  knew.  The 
examination  lasted  several  days  in  succession;  it  was  during  that 
examination  that  Defield,  made  his  attempt  to  impeach  the  testi- 
mony of  the  Morrisons.  "I  knew  the  whole  transaction,  but  I  kept 
it  to  myself,"  says  the  witness.  And  why  ?  "  Oh  !  because  1  am  not 
in  the  habit  of  speaking  of  such  things,"  such   is    the  testimony  of 

this   infamous I  beg  pardon    gentlemen,   I    will  not  allow 

myself  to  make  use  of  that  expression,  however,  just  and  applicable 
it  may  be  ;  it  escaped  me  unguardedly.  He  says  that  McLeod  had 
confessed  that  he  wae  one  of  those  who  had  set  on  foot  and  assisted 
in  the  enterprise. 

I  ask  you  gentlemen,  if  you  can  give  any  credence  to  Corson,  who 
can  give  such  a  relation  as  this  1  This  shows  the  importance  of 
cross  examination,  though  it  may  seem  to  be  rigid  and  unkind,  it 
shows  that  these  are  witnesses  who  call  for  no  very  great  exercise 
of  charity  or  kindness  towards  them.  These  overwhelmning  and 
contradictory  facts  were  drawn  out  on  the  cross  examination) 

But  this  is  not  all,  there  is  another  circumstance  of  impeachment 
of  the  witness,  wherein  he  stands  impeached,  in  the  very  witness's 
stand  in  our   presence.     I   was  desirous   of  koowing   whether  he 


J , . 


r 


m: 


3 


tS?i 


262 


CiOULD's  REPORTEK. 


would  venture  to  name  any  other  person  who  was  present,  and  who 
saw  what  he  saw  ;  and  after  a  good  deal  of  scrutiny — a  good  deal  ol 
pressing  (for  he  had  to  be  brought  to  the  scratch  sevenil  times,  he 
was  so  skilful  in  dodging,  like  the  race  horse  hard  to  be  brought  to  the 
starting  post,  but  when  once  engaged  in  the  race  pursuing  it  with 
pleasure),  upon  being  at  last  brought  to  the  mark.  He  says,  "It 
occurs  to  me  at  this  moment,  for  the  first  time,  that  Mr.  Caswell  was 
there." 

I  do  not  know  whether  any  of  you  regarded  this  Avitness  as  I 
did,  and  if  you  did  not  it  was  no  dereliction  of  duty,  though  I  hope 
some  of  you  did  notice  it,  but  my  own  conviction  was  that  every 
word  he  uttered  was  rank  perjury.  You  will  have  noticed  how  sud- 
denly it  flashed  across  his  mind  for  the  first  time  that  Caswell  wa;? 
there,  while  it  appears  from  his  subsequent  acknowledgment  that 
he  has  since  conversed  with  Caswell  as  to  the  particular  day  when 
these  occurences  took  place  and  yet  he  told  you  on  that  stand,  that 
then  for  the  first  time  it  occurred  to  him  that  Caswell  was  there. 

Gentlemen  I  will  apply  to  this  witness,  the  old  adage  Falsus  in  uiw 
falsus  in  omnibus^  which  means,  that  falsehood  in  one  particular 
throws  discredit  upon  the  whole.  If  he  is  unworthy  of  confidence 
in  one  particular  he  is  in  al! — a  liar  is  not  to  be  believed  even  when 
he  speaks  the  truth.  This  witness — and  the  remark  applies  to  ma- 
ny— was  at  a  loss  to  tell  how  the  people  found  out  that  he  knew  any 
thing  about  the  case,  but  this  is  a  point  of  no  great  consequence,  i 
will  now  dismiss  this  same  Isaac  P.  Corson  as  one  of  the  colleague^ 
of  Caswell  and  the  two  Smiths,  who  could  not  do  better  than  adopt 
for  their  motto  "  united  we  stand,  divided  we  fall,"  but  whether  wt 
consider  their  testimony  together  or  separately,  I  believe  it  will  not 
be  considered  worthy  of  belief. 

Let  us  next  come  to  Charles  Parke,  he  was  bar  tender  for  Davis, 
and  consequently  had  good  opportunities  of  knowing  whether  Mc 
Leod  was  there  ;  and  yet  he  was  exceedingly  cautious.  He  saw 
McLeod  in  the  afternoon,  cannot  tell  the  hour,  and  saw  him  again 
in  the  evening.  You  have  the  statement  of  iVicLeod  himself  thai 
he  went  to  bed  at  about  three  o'clock,  and  Davis  also  states  that  he 
went  to  bed  about  three  o'clock.  But  this  witness  makes  the  time 
of  his  getting  up  a  little  later  than  the  others  do,  so  as  to  make  it  dif- 
ficult for  him  to  get  to  Stamford.  At  this  point  Mr.  Press  takes  hiui 
to  Stamford.  Three  quarters  of  an  hour  afterwards  this  man  saw  him 
at  the  cut  at  Chippewa.  Now  either  Press  has  uttered  a  deliberate 
falsehood,  or  this  same  Charles  Parke  is  perjured  ;  about  this  there 
is  no  mistake. 

He  says  he  thinks  McLeod  got  into  one  of  the  boats  and  proceed- 
ed up  the  river  three  quarters  of  a  mile  ;  nearly  opposite  Navy  k- 
land  —witness  remained  there  an  hour  or  two  upon  the  bank  of  the 
river  and  then  returned  and  went  to  bed.  Well,  do  you  suppose, 
whether  he  was  there  or  not,  that  he  was  ignorant  of  what  Avas  done 
— of  the  fact  that  the  boats  after  they  left  the  Chippewa  were  tow- 
ed up  the  river  1  He  knew  precisely  what  the  testimony  of  four- 
teen or  fifteen  other  witnesses  was,  upon  this  point,  and  he  made 
his  testimony  to  square  with  theirs.     Now,  the  next  morning  he  saw 


wishe 
that 
its  an 
he  wa 
here, 
comp( 
measi 
Nox 
standi 
howev 
courts 
do  not 
and  h( 
know 
he  got 
the  ex 
come 
asked 
then, 


\ 


.rA 


,  and  who 
(xl  deal  ol 

times,  lu- 
ight  to  tlu' 
tr   it    with 

says,  » It 
iswell  was 

tness  as  I 
jgh  I  hope 

that  every 
1  how  sud- 
'aswdl  wa^ 
TiTient  that 
f  day  when 

stand,  thtil 
s  theve. 
Isus  in  vno 
:    particular 

confidence 

even  when 
plies  to  ma- 
le knew  any 
sennence.  I 
}  colleaffue> 
r  than  adopt 

whether  we 
fe  it  will  not 

er  for  Davis, 
vhether  Mc 
IS.     He  saw 
V  him   again 
himself  thai 
ates  that  he 
tes  the  time 
o  make  it  dif- 
;ss  takes  him 
man  saw^  him 
a  deliberate 
ut  this  there 

and  proceed- 
iite  Navy  1^- 
;  bank  of  the 
you  suppose, 
hat  was  done 
va  were  tow- 
lony  of  four- 
nd  he  made 
)rnine  he  saw 


MCLEOD  .S    TRUr,. 


2fi:< 


McLeod  and  saw  him  also  tiirongh  every  part  of  the  day.  Well,  this 
was  not  necessary,  because  our  own  witness  brought  liiiu  Imc!;  the 
next  day.  His  next  statement  is  that  at  sunrise  or  a  little  Inter  he 
aofain  saw  MeLeod  in  the  public  square  at  Chippewa  with  a  swortl 
by  his  side,  he  could  not  say  that  any  one  was  with  him,  nor  did  he 
hear  him  say  anythinir.  Now  is  it  very  likely  that  he  should  have 
seen  McLeod  alone  with  a  sword  by  his  sido  at  that  early  hour  in  the 
morninof  1  If  you  believe  this  story  you  will  have  to  disbelieve  our 
whole  case  ;  if  you  doubt  it  a  little  the  witness  cannot  complain,  after 
you  have  heard  a  little  more  which  will  appear  in  the  sequel. 

He  says  he  afterwards  heard  McLeod  boast  of  havintr  taken  part 
in  the  expedition.  I,  (jentlemen  of  the  jury,  standinpc  i"  "ly  place 
as  counsel  for  McLeod,  authorized  by  him,  take  upon  myself  to  say 
that  he  never  made  any  such  hoast.  When  these  statements  have 
appeared  from  time  to  time  in  the  public  prints,  McLeod  has  said 
"  Can  it  be  possible  that  they  should  suppose  i  am  so  very  a  fool 
as  to  boast  of  having  had  a  part  in  this  matter,  when  every  person 
living  along  the  frontier  knows  I  had  nothing  to  do  with  it!"  If  he 
had  boasted  of  it  on  this  side  of  the  line  would  the  evidence  not 
have  been  brought  forward  here  on  the  part  of  the  prosecution  '. 
But  if  he  boasted  of  it  on  the  Canada  side  of  the  Niagara  river  he 
would  have  been  guilty  of  the  most  arrant  folly  J  I  have  had  to  in- 
terpose my  authority  to  prevent  McLeod  from  contradicting 
through  the  public  prints,  these  absurd  statements.  I  represented 
to  him  that  it  would  be  much  better  to  allow  the  trial  to  exculpate 
him  from  the  folly  which  had  been  imputed  to  him  of  boasting  of 
an  achievement  in  which  he  had  no  share,  and  at  a  place  too  where 
it  was  perfectly  well  known  that  he  had  nothing  to  do  with  it. 

There  is  another  circumstance  regarding  this  witness,  Charles 
Parke,  to  which  I  would  desire  to  direct  your  attention.  You  will 
recollect  that  he  lives  seventeen  miles  up  the  Chippewa,  and  he 
wished  to  give  you  to  understand  that  he  came  here  reluctantly; 
that  emissaries  were  stationed  to  watch  his  entrance  within  the  lim- 
its and  jurisdiction  of  the  State  of  New  York  ;  and  when,  at  last. 
he  was  surprised  and  caught  at  BufTnlo,  and  subpa-naed  to  come 
here,  he  went  to  Mr.  Hawley  to  ascertain  whether  he  would  be 
compelled  to  go,  and  was  told,  that  unless  he  consented  to  go, 
measures  would  be  taken  to  compel  him. 

Now  it  strikes  me,  gentlemen,  that  there  was  no  want  of  under- 
standing on  the  part  of  this  witness.  He  knew  perfectly  well,  that 
however  potent  the  arm  of  the  law  is  within  the  jurisdiction  of  our 
courts,  that  it  could  not  have  reached  him,  if  he  had  gone  home.  I 
do  not  believe  a  word  that  Parke  has  said.  He  was  a  bar-tender  ; 
and  he  represents  himself  as  being  so  busy  that  he  did  not  even 
know  where  McNab's  quarters  were  :  and  it  is  a  little  sinjjular  that 
he  got  away  up  the  Niagara  river  three  quarters  of  a  mile,  to  see 
the  expedition  embark  !  Then,  with  respect  to  his  unwillingness  to 
come  here,  he  says  he  was  on  his  way  to  Buffalo,  and  a  person 
asked  him  if  he  was  going  to  Buffalo  ;  he  replied  that  he  was,  and 
then,  like  a  scape-goat,  got  into   his  wagon  and  drove  home  ;  and 


1 ..— « 


I  ■ 


,  t 


■10 


:64. 


•jould's  reportkr. 


lor  no  reiison  b\it  because   a  man  asked   him  if  lie  was  going  to 
IJufralo. 

Now  if  he  was  really  poinp  to  Buffalo  on  busiiu'SB,  and  believed 
that  this  man  was  a  spy,  who  would  pive  intelligence  to  somebody 
that  he  was  poiiip  there,  would  it  not  have  been  easy  for  liiin  to  put 
the  man  off  his  guard  by  what  Afrs.  Opie  would  have  called  a  white 
lie  !  But  he  was  so  very  scrupulous  in  truth-telling,  that  he  said 
he  was  going,  and  then  IUmI  away  !  I  will  give  you  my  interpreta- 
tion of  his  conduct.  He  started  to  go  to  Bulfalo,  to  be  sulipii  naed 
to  attend  this  trial ;  and  when  he  got  to  Chippewa,  he  ascertained 
that  he  was  one  week  too  soon.  He  went  home  and  waited  a  week, 
and  then  what  happened  !  Wc  find  him  next  coming,  with  a  two- 
horse  wagon,  into  Chippewa  ;  and,  as  he  says,  he  was  inquired  of 
again  if  he  was  going  to  ]{nffalo,  and  there  was  a  man  standing  by 
who  turned  away  his  face  as  though  he  did  not  notice  him  ;  and 
this  man  crossed  below  the  falls,  and  got  to  Buffalo  before  him,  and 
was  ready  with  a  subpoiia  for  him  when  l.e  arrived.  He  had  his 
team  there,  and  what  did  ho  do  !  Did  he  buy  his  plough,  and  pump, 
and  stove  !  No  such  thing  ;  but  sent  his  team  home  without  them. 
Now,  gentlemen,  if  this  be  a  story  which  commands  your  belief,  1 
confess  I  am  greatly  mistaken.  In  my  opinion,  the  whole  of  this 
statement  is  set  up  to  give  force  and  consequence  to  his  evidence  ; 
to  give  you  an  idea  that  he  came  here  by  constraint  of  the  law,  that 
this  circumstance  might  furnisli  to  you  evidence  that  he  had  no  mo- 
tive in  falsifying  the  truth.  If  it  be  not  so,  then  I  confess  I  have 
been  wholly  unable  to  see  its  purpose.  He  knew  full  well  that  he 
would  have  plenty  of  time  to  come  here  before  his  evidence  would 
be  required ;  and  I  submit  to  you,  whether,  if  his  statement  be  true 
that  he  come  reluctantly,  he  would  not  have  purchased  his  plough 
and  the  other  articles  which  he  professed  to  have  gone  to  Buffalo 
to  buy,  and  sent  them  back  with  his  teamster  1  But  if  I  know  any- 
thing about  it,  he  brought  a  person  with  him  expressly  for  the 
purpose  of  taking  the  team  back,  knowing  that  he  would  be  sub- 
pcBnaed. 

This  man  also  endeavors  to  fortify  his  statements  with  other  cir- 
cumstances. He  says  he  was  invited  to  leave  the  tavern  and  go  up 
the  river  with  Captain  Nellis.  This  same  Captain  Nellis  was  a 
stranger  in  Chippewa ;  but  he  had  procured  the  countersign,  which 
was  the  word  "Place,"  and  gave  it  to  the  first  sentinel;  and  thus 
they  could  wander  about,  never  having  the  countersign  demanded 
after  the  first  time.  This  part  of  his  story  may  be  true ;  but  as  I 
do  not  belie /e  any  part  of  it,  you  will  pardon  my  skepticism  in 
doubting  this  also.  He  says  he  went  up  merely  from  motives  of 
curiosity,  as  the  house  was  more  empty  then  than  common.  He 
says  he  looked  McLeod  in  the  face,  but  did  not  speak  to  him.  It 
became  important  that  this  same  Charles  Parke  should  testify  that 
he  saw  him  at  a  distance  of  eight  or  ten  feet  in  midnight  darkness, 
and  that  he  looked  him  in  the  face.  This  is  the  same  man  who, 
several  years  ago,  went  with  his  brother-in-law,  some  twenty-eight 
or  thirty  miles,  to  settle  sheriff's  fees  ;  and  this  is  his  apology  for 
knowing  McLeod !     This  ends  the  patchwork.     He  was  afraid  of 


*1 


;  I. 


'  mt 


MCLEOD  8   TRIAL. 


26') 


It 


I  going  to      • 

1  bo  lie  veil 
poiiiebody 
liin  to  put 
.'(1  a  white 
it  lie  said 
iiiterprctn- 
;ultpa  nuetl 
scertainod 
ed  a  week, 
/ith  a  two- 
iiquired  of 
lauding  by 
him  ;  and 
re  him,  and 
He  had  his 
and  pump, 
hunt  them. 
»ur  belief,  1 
ole  of  this 
i  evidence  ; 
le  law,  that 
had  no  mo- 
ifess  I  have 
veil  that  he 
ence  would 
ent  be  tvue 
lis  plough 
to  Buffalo 
know  any- 
sly  for  the 
aid  be  sub- 

1  other  cir- 
and  go  up 
ellis  was  a 
sign,  which 
;  and  thus 
demanded 
16  ;  but  as  I 
epticism  in 
motives  of 
mon.  He 
to  him.  It 
testify  that 
It  darkness, 
man  who, 
iventy-eight 
apology  for 
s  afraid  of 


going  to  be  a  witness,  and  would  flee  from  any  one  wiio  was  likely 
lo  8ubpa:na  him,  as  front  the  "  wrath  to  come. 

Meyers  lived  in  Canada,  and  says  that  eiirht  or  ten  days  after  the 
burning  of  the  Caroline  he  saw  AlrLciod.  This  is  the  man  who 
wandered  about  the  country  from  the  round  plains  near  Lake  Sim- 
coe  ;  and  the  forty  years'  wandering  of  the  children  of  Israel  in  tho 
wilderness  was  never  drawn  upon  a  map  more  devious  and  crooked 
than  was  the  route  which  he  pursued  ;  and  it  is  a  wonder  that  he 
was  not  as  long  in  getting  to  the  land  of  promise,  as  were  Moses  and 
his  followers.  I  wish  you  could  look  upon  a  map  :  to  puss  by  Smitli- 
ville  from  the  round  plains,  he  must  have  gone  forty  or  fifty  miles 
out  of  his  way.  Did  he  go  through  St.  David's  ?  No  ;  he  went 
west  of  St.  David's.  Did  he  go  to  Chippewa  !  No;  for  he  saw  no 
soldiers.  Where  did  you  strike  the  Niagara  river  ?  I  do  n't  know  ; 
it  was  two  or  three  miles  from  the  falls.  The  sequel  shows  that  he 
was  brought  through  this  devious  way  to  have  an  interview  with 
Alexander  McLeod.  Now  let  us  have  it.  [Mr.  Spencer  here  turned 
to  his  notes  of  the  testimony,  and  read  :  "  Somebody  said,  Where 
is  the  man  that  shot  Durfee.  McLeod  cried  out,  '  Here  ho  "s  ;  I 
am  the  man,' — and  drew  out  a  pistol  and  said,  'that  is  the  pisiol 
that  h'lot  him.'     He  then  drew  his  sword,  and  said,  'there  is  the 

blood  of  a  d d  Yankee.'    There  was  blood  dried  upon  the  sword, 

for  live  or  six  inches  from  the  point."]  Nowifthisisa  story  which 
you  are  ready  to  credit,  that,  eight  or  ten  days  after  the  burning  of 
the  Caroline,  McLeod  was  at  the  Pavilion,  or  any  other  tavern  near 
the  Falls — if  you  believe  that  McLeod  was  there,  with  a  pistol  in 
his  pocket,  and  a  sword  by  his  side  with  six  inches  of  blood  upon 
it, — then  you  will  be  able  to  believe  the  story  of  Meyers,  who  wan- 
dered forty  years  before  he  found  Alexander  JMcLeod.  But  I  think, 
before  you  give  credence  to  the  story  of  the  wandering  Meyers,  you 
will  set  him  down  with  those  who  have  preceded  him,  and  who  have 
fabricated  their  stories  from  beginning  to  end,  and  told  the  most 
foolish  lies  to  get  into  the  presence  of  McLeod. 

Calvin  Wilson  is  the  man  who  kept  the  ferry  at  Niagara.  He 
would  not  acknowledge  that  he  harbored  Benjamin  Lett ;  but  he  is 
the  same  man  who  gave  $200  to  promote  the  patriot  cause,  and  the 
man  who  belongs  to  a  secret  society,  and  who  was  afraid  of  a  crim- 
inal prosecution,  if  he  swore  to  the  truth — the  same  man  who  swears 
to  the  confession  of  McLeod.  Now  look,  and  see  if  his  confession 
does  not  follow  up  in  the  chain  with  those  who  testified  before. 
When  some  one  inquired  how  many  were  killed  at  Schlosser  :  "He 

did  not  know  ;  but  one  thing  he  did  know,  that  one  d d  Yankee, 

or  rebel,  had  got  shot  upon  the  wharf."  Well,  gentlemen,  our 
commissions  prove  that  there  was,  in  point  of  fact,  a  man  shot  upon 
the  dock,  and  that  he  fell  dead ;  and  it  is  well  known  that  Durfee 
was  found  thus  shot :  and  this  confession,  which  was  put  by  this 
witness  into  the  mouth  of  McLeod,  was  framed  just  to  suit  the 
case. 

I  intended  to  treat  this  Wilson  fairly.  I  asked  him  how  the  con- 
versation was  introduced.  He  says  he  went  over  the  river  to  see 
Mr.  Meredith,  the  successor  of  Mr.  Raincock,  and  that  he  saw  Rain> 

U 


(     : 


■        t 


■i 


,(• 


266 


OOULD  8    REPORTEIl. 


PSi  i 


U'V,: 


cock  in  tlic  bni'-rnoin  ;  tliiit  Kiiincock  mndo  the  inqniry,  nnd  McLeod 
unHwcrcd  iiiiii.  I  put,  llic  (|uc?.tioii  lo  him — "  Ar«'  you  not  nii.siiik<Mi 
al»t)iit  ilH  hcin}f  Mr.  Kaincock  !  Mis  reply  wiis,  that  he  wds  surf.  I 
did  not  Htop  lierc,  hut  put  tho  quontion  whether  Haincock  did  not 
leave  hcl'oro  that,  lie  answered,  "  I  know  ho  was  there."  Now  ii 
is  poHsihle  tliat  he  is  mistaken  as  to  tho  man  wh(»  hold  the  conver- 
sation; but  it  so  happens  that  a  slranpfor  to  him  and  myself  told  me 
that  he  left  before.  Wo  have  called  Mr.  Hamilton,  and  four  or  live 
other  wilneBseu,  who  testify  that  he  had  loft  before  that  time.  It 
proves  this:  that  he  is  mistaken,  or  that  he  is  pnilty  of  falsehood. 
Why  did  ho  vouch  any  person  !  It  was  to  add  strenrrth  to  his  tes- 
timony. Why  did  he  name  Kaincock  I  I  will  answer  that  also. 
He  named  him  because  ho  thought  that  would  add  strength;  he 
named  him  because  h«  was  out  of  the  country,  and  could  not  be 
brought  to  confront  him.  These  are  two  cases  where  the  witness 
has  involved  himself  in  difTiculty,  as  other  liars  always  do.  He 
named  a  man  who  had  actually  been  there,  but  now  could  not  be 
brought  forward.  Therefore  it  was  that  he  vouched  liim,  and  no 
one  else  ;  and,  through  a  failure  of  memory  to  sustain  iiim,  he  has 
involved  himself  in  a  contradiction  which  renders  his  story  utterly 
impossible. 

Here  allow  me  to  remark  again,  in  general,  thot  it  is  one  of  the 
beautiful  laws  of  Him  who  created  the  moral  as  well  as  the  natural 
world,  that  truth  will  always  be  consistent  with  itself.  It  needs  not 
the  exertion  of  great  memory  or  genius  to  be  able  to  get  along  any- 
where, whether  the  period  be  distant  or  otherwise,  while  truth  is 
on  your  side.  Whenever  you  undertake  to  bring  falsehood  to 
serve  as  tiie  substitute  of  truth,  the  same  law  always  involves  the 
liar  in  difiiculty.  It  is  the  contrivance  of  villainy  which  leads  to 
the  detection  of  villainy.  A  villain  never  breaks  your  dwelling, 
or  robs  you  of  your  treasure,  but  he  is  driven  to  resort  to  those 
means  of  concealment  which,  sooner  or  later,  lead  to  his  discovery. 
So  the  means  which  this  witness  has  used,  has  given  to  us  the 
power  to  overthrow  his  testimony,  unless  the  Attorney  General 
would  have  you  still  believe  him,  and  hang  McLeod  upon  his  oath, 
thoifgh  every  word  he  has  said  is  false. 

Will  the  Attorney  General  press  the  prosecution  thus  far  1  1 
trust  not :  I  will  wait  and  see,  before  I  judge  him  thus  harshly. 

This  disposes  of  Calvin  Wilson.  Now  a  single  word  as  to  Set/i 
Hinman.  He  says  he  saw  McLeod  the  next  morning  after  the  de- 
struction of  the  Caroline.  Now,  gentlemen,  you  will  find  this  story 
in  exact  conformity  to  our  statement  of  the  case.  We  say  he  was 
at  Davis'  after  dark,  and  left  there  soon  after  ;  this  witness  must 
tell  you  that  he  was  a  bar-tender  for  Patrick  Cavanagh,  one  hun- 
dred rods  off  from  Davis'.  While  the  village  was  filled  with  troops  : 
— for  there  were  2,500  men  at  Chippewa — this  man  could  get  up 
between  daylight  and  sunrise  and  see  McLeod ;  and  swear  that  he 
was  there  in  the  morning.  This  man  swears  that  he  had  been  ex- 
amined before  Esquire  Bell  at  the  examination  of  McLeod,  and 
that  he  did  not  say  anything  about  seeing  him  in  the  morning ;  he 
did  not  think  of  it  then.     He  first  mentioned  it  last  spring.     Now, 


'  Mt 


MCLKOd's    TRrAf.. 


2l>7 


dMcLcod 
.  miNtiikcii 
r,y  stirr.      I 
c\i  (lid  imt 
'      Now  il 
le  coiivfr- 
•If  tnltl  UK' 
Dnr  or  five 
:  time.     It 
I'ltlsehood. 
to  his  tes< 
thtit  iilso. 
cn|H[th  ;  In- 
iild  not  be 
he  witness 
9  do.     He 
uld  not  be 
im,  and  no 
im,  lie  has 
ory  utterly 

one  of  the 
the  natural 
;  needs  not 
along  nny- 
le  truth  is 
Isehood  to 
ivolves  the 

h  leads  to 
r  dwelling, 
rt  to  those 

discovery. 

to  us  the 
!y  General 
in  his  oath. 

us  farl  1 
xrshly. 
as  to  Sei/i 
ter  the  de- 
1  this  story 
say  he  was 
tness  must 
one  hun- 
ith  troops : 
>uld  get  up 
^ar  that  he 
id  been  ex- 
Leod,  and 
orning;  he 
ing.     Now, 


^(■lUlonieii,  thin  mnn — thi»  Scth  (lininan — in  a  brother-in-law  of  Cor- 
son, and  a  collen^'ue  of  the  Smiths.  This  iH  the  man  who  had 
Ix'eu  railed,  one  year  ago,  and  then  only  tostilicd  to  the  inlerviou 
in  the  eviMiiiig  ;  hut  now,  having  heard  our  depoHilionx,  and  kiiowinu 
our  wholu  case,  and  iiuding  this  an  nn|i(irii)nt  point,  he  conjiircH  up 
tlii.>^  story,  that  he  came  down  in  pursuit  of  news  at  duylij^ht,  and 
that  he  tluM\  saw  McLeod.  Oh!  the  depth  of  the  wickeduoss  of 
man!  to  fabricate  a  story  to  swear  a  human  being  to  the  gallows. 
May  (iod  grant  him  deliverance,  for  no  other  power  is  equal  to  ii. 

Here  the  Court  took  a  recess  for  dinner. 

Afteknoon  SEsaroN. 

The  court-room  this  afternoon  was  more  densely  crowded  than 
in  the  morning,  and  the  number  of  ladies  was  greatly  ii\creased — 
among  whom  were  to  be  seen  the  ladies  and  daughters  of  the  first 
citizens  of  Utica,  attracted,  tloubtless,  by  the  fame  of  the  gentle- 
men who  were  to  address  the  jury  ;  and  well  indeed  were  they  re- 
paid for  the  eager  attention  with  which  the  arguments  of  the  elo- 
quent coimscl  were  received — lor  perhaps  on  no  previous  occasion, 
in  this  section  of  the  country,  have  been  heard  more  splendid  dis- 
plays of  forensic,  eloquence  and  elaborate  argimient. 

Mr.  Spencer  proceeded  as  follows  : — 

At  the  time  the  Court  took  a  recess,  I  had  partly  finished  what  I 
conceived  to  be  my  duty  to  the  prisoner,  in  pursuing  the  examina- 
tion of  witnesses  for  the  prosecution,  upon  whouj  their  case  rests — 
though  when  I  take  a  view  of  it,  it  appears  to  me  to  have  no  resting- 
place  under  the  canopy  of  heaven,  i  have  yet  to  examine  the  tes- 
timony of  several  other  witnesses,  because  there  are  emphatically 
a  great  cloud  of  witnesses;  and  if  in  this  case,  as  in  others  it  is 
said,  by  the  mouth  of  two  or  three  witnesses  shall  all  things 
be  estoblished,  how  much  greater  is  the  danger  of  my  client,  when 
such  a  host  of  witnesses  are  marshalled  against  him  I  Before  pro- 
ceeding further  in  this  examination,  which  I  admonished  you  would 
not  be  interesting,  but  dry  and  desultory,  I  will  add,  that,  though  I 
may  seem  harsh  and  severe  in  my  strictures  upon  this  evidence,  I 
will  "nothing  extenuate,  nor  set  down  aught  in  malice,"  but  truth- 
fully, faithfully — and  I  hope  fearlessly,  present  my  views  of  the  evi- 
dence connecting  McLeod  with  the  destruction  of  the  Caroline,  so 
that  it  will  appear,  as  by  the  light  of  the  brightness  of  the  sun's 
rays,  in  its  true  character — the  whole  of  it,  as  I  verily  believe  it  is 
from  beginning  to  end,  an  unholy  and  wicked  combination  of  wick- 
ed men,  to  promote  the  most  base  and  wicked  purposes. 

Sn7-les  Yates  will  not,  need  not,  receive  much  attention  at  my 
hand.  I  notice  him  simply  to  remark,  that  the  least  trifle  on  earth 
has  been  hunted  up  with  the  hope  of  making  it  available  in  this 
case.  The  whole  of  his  evidence  amounts  to  nothing  at  all.  He 
says,  that  somebody  said,  "This  is  something  like  the  night  of  the 
burning  of  the  Caroline."  Another  answered,  "  Yes — we  gaA'e 
them  '■Jlleck^ — I  should  like  another  job  like  that."  His  evidence, 
it  was  hoped,  would  connect  McLeod  with  the  affair,  but  that  failed  ; 
and  when  he  had  got  through,  I  was  about  to  call  upon  him,  when 
the  Court  interposed,  and  almost  censured  me  for  not  objecting  to 


<  . 


.^ 


Ii 


268 


GOULD  S    REPORTER. 


m.^^ 


iW 


asii 


it  at  the  time.  I  have  no  doubt  the  prosecution  hoped,  by  means 
of  his  evidence,  to  connect  McLeod  with  this  afiliir,  and  I  have 
only  to  call  your  attention,  and  say  how  signally  it  has  failed.  This 
witness  shrunk  from  the  service  which  he  had  pledged  himself  to 
perform. 

The  next  is  William  Caswell  ^  and  here,  you  will  bear  in  mind, 
I  bring  in  one  of  the  group,  in  respect  to  whom  I  have  commented 
already.  He  is  one  and  indivisible  with  Corson,  the  two  Smiths, 
and  Hinman.  They  all  stand  in  the  same  category,  or  little  knot, 
with  combined  hands  ;  they  have  looked  into  the  depositions,  and 
have  calculated  to  command  belief  from  the  greatness  of  their 
numbers.  It  needs  no  greater  strength  of  ingenuity  or  depravity — 
the  wickedness  is  the  same — the  depravity  of  which  it  furnishes 
the  evidence  is  the  same  ; — and  this  is  a  matter  which  involves  in- 
terests sufficiently  diversified  to  find  more  than  one,  or  five,  or 
twenty-live,  or  five  hundred,  as  depraved  as  Caswell  and  the  Smiths. 
It  is  my  solemn  conviction,  that  this  most  dangerous  combination 
along  the  frontiers  of  our  country  can  furnish  any  number  of  men 
for  any  purpose,  whether  to  hang  McLeod,  or  to  involve  the  coun- 
try in  war.  I  have  no  confidence  in  them — I  repeat  it,  I  have  no 
confidence  in  one  single  soul  of  them.  I  believe  they  are  all 
steeped  in  desperation.  My  acquaintance  along  the  frontier  coun- 
ties has  satisfied  me  that  they  are  a  body  of  men,  who,  if  conse- 
quence enough  can  be  attached  to  them,  will  involve  our  country  in 
a  war ;  but  if  Great  Britain  and  the  United  States  will  view  this 
subject  in  its  true  light,  they  will  find  no  cause  for  war,  merely  be- 
cause such  schemers  shall  undertake  the  work  of  pressing  them 
into  conflict.  There  are  some  within  my  hearing — within  my  look 
too — and  I  say  to  them,  as  I  say  to  every  other  one  along  the  fron- 
tier, that  this  efl!brt  to  get  up  a  war  shall  never  meet  with  success, 
if  their  character  and  motives  can  be  well  appreciated  by  the  com- 
munity, to  whom  they  owe  a  solemn  duty,  but  disregard  it. 

This  Caswell  says,  that  he  saw  McLeod  at  9  or  10  o'clock,  more 
or  less — he  concluded  that  he  was  talking  to  a  scrivener,  who  was 
making  out  a  deed,  and  who  says,  seventy-five  acres,  more  or  less 
— going  from  Davis'  to  Mecklem's.  He  began,  as  did  Corson,  and  as 
did  the  other  two  witnesses,  and  Parke,  with  taking  latitude  enough 
to  meet  any  and  every  emergency.  He  says  he  saw  him  again  the 
next  morning  on  Davis'  steps.  If  McLeod  was  there  at  9  o'clock, 
and  remained  till  ten,  it  would  not  be  very  strange  if  he  were  one 
of  the  party  who  entered  a  boat  at  that  hour,  and  put  off'  for  the 
American  shore ;  and  if  he  were  there  at  7  on  the  next  morning, 
never  having  been  away  through  the  night,  it  would  not  be  strange 
that  he  should  have  been  one  of  the  party.  Caswell  swears  to 
this  with  great  positiveness  :  it  is  true  or  false,  and  he  knows 
which,  just  as  well  as  any  human  being  can:  and  it  becomes  the 
duty  of  you  and  me,  to  put  what  construction  we  consider  right,  as 
to  whether  it  be  true  or  false. 

He  says  there  was  quite  a  number  of  persons  about  there  at  the 
time  when  he  came  into  the  bar  room,  and  heard  McLeod  talking 
and  heard  him  say  that  they  made  the  d — d  rebels  run  when  they 


m~{i^ 


more 

who  was 

or   less 

,  and  as 

enough 

Tain  the 

o'clock, 

ere  one 

for  the 

nornms;, 

strange 


Mcleod's  trial. 


269 


came  there  ;  that  he  had  seen  one  dead  on  the  dock,  and  adds  1 
think  he  had  a  large  pistol  in  his  hand  by  the  muzzle.  This  witness 
spoke  witii  Corson  and  asked  if  the  depositions  would  come  u|> 
against  the  witnesses  on  the  stand  ;  two  or  three  of  the  party,  who 
had  been  over,  were  talking  together  ;  one  had  seen  a  man  dead 
on  the  dock  ;  and,  if  Corson  was  not  mistaken,  McLeod  held  a  pistol 
in  his  hand. 

1  submit  to  you,  gentlemen,  whether  you  are  not  satisfied  that  this 
man  who  says  he  went  on  to  the  steps  just  as  McLeod  went  off,  that 
he  came  half  a  mile  before  daylight,  that  he  did  not  speak  to  Mc- 
Leod, that  he  had  no  arms,  but  "  knew  he  was  engaged  in  the 
Caroline  affair,"  may  not  very  well  be  set  down  with  the  rest.  What 
do  you  think  of  this  expression: — "If  1  am  not  mistaken,  I  think 
he  had  a  large  pistol  in  his  hand  by  the  muzzle"  \ 

If  the  fact  took  place  and  he  saw  it  upon  the  morning  of  the  30th 
December,  there  was  no  need  of  his  expressing  doubt  as  to  being 
mistaken  ;  if  he  saw  him  handle  the  pistol  by  the  muzzle  there  was 
no  need  of  thinking  or  doubting  ;  but  even  here,  this  man  is  not  the 
first  instance  where  men  have  failed  in  having  courage, — 1  will  not 
.say  moral  courage,  he  failed  in  nerve — and  dare  not  come  up  to  the 
labor  of  positively  asserting  that  this  man  then  held  a  pistol  by  the 
niuz'/le  and  that  it  was  the  instrument  of  death  which  was  used 
agamst  Durfee  ;  why  notl  Becau'>ehe  is  like  every  other  coward 
and  knave,  and  villain,  that  stalks  abroad  in  our  land  ;  when  did  you 
ever  know  a  man  of  nerve  who  was  steeped  in  iniquity  ]  It  is  hon- 
esty, generosity,  nobleness  of  soul,  which  enable  a  man  to  declare 
boldly  and  fearlessly  what  he  knows.  But  no' such  thing  ever  per- 
vaded tbe  bosom  of  this  Caswell  ;  if  so,  it  has  been  long  since  ex- 
tinct, nnd  if  not,  he  only  needed  to  be  swayed  by  those  who  ap- 
peared before  him  to  extinguish  every  particle  which  ever  mingled  in 
liis  composition. 

Thus  much  for  this  man  ;  which  brings  me  to  the  evidence  of  Anson 
D.  Quinby.  The  testimony  of  this  man  has  been  thoroughly  examin- 
ed by  my  associate,  I  shall  not  have  occasion  to  say  much  respect- 
ing it  ;  but  I  owe  it  to  the  Attorney  General  to  say  that  he  is  not 
responsible  for  the  character  of  this  witness.  I  presume  he  has 
received  many  letters  from  persons  with  whom  he  would  not  be  the 
first  to  open  a  correspondence.  The  man  Grosvenor,  who  first  wrote 
to  the  counsel  for  the  prosecution  on  the  subject  of  Quinby's  testi- 
mony, is  a  fit  associate  of  Quinby,  as  I  verily  believe,  for  he 
stands  under  an  indictment  in  Pennsylvania  on  a  criminal  charge: 
He  was  a  fit  tool  to  inform  the  Attorney  General  thnt  Quinby  woul:' 
be  an  important  witness,  but  did  he  ta'.ce  the  precaution  not  to  be  him- 
self deceived  !  I  believe  he  has  been  again  and  again  deceived.  It 
would  seem  so  from  the  account  which  Quinby  gives,  and  Mr.  Lotl, 
the  magistrate,  who  would  not  put  the  statement  in  the  form  of  a 
deposition,  which  was  required  ;  but  the  magistrate,  Grosvenor,  took 
ti\e  deposition  and  certified  to  his  character  and  foujiu  at  induce- 
ment snfliciently  strong  to  bring  this  Quinby  here  to  depose.  He 
did  come  ;  we  have  seen  him — we  have  heard  him — and  we    have 


•1 M 


'i  Ml. a  • 


t  •> 


:.M 


J 


m 


*270 


^OUI^D  S    REPORTER. 


lieartl  his  character  from  his  neighbors,  and  it  is  now  submitted 
whether  lie  is  deserving  of  vo'ir  confidence. 

The  witness  s«ys,  1  saw  .McLeod  again  at  sunrise,  not  far  from 
the  end  of  the  bridge.  This  is  an  entirely  new  location  ;  he  was 
not  a  very  apt  scholar,  or  he  has  not  observed  his  teaching  with  the 
same  attention  or  fidelity  as  some  others.  He  says  there  was  no 
one  with  him,  and  he  is  not  sure  that  McLeod  had  a  belt  around 
him  or  anything  hanging  at  his  side.  He  says  that  some  one  came 
across  the  bridge  and  asked  him  how  they  made  it  go.     He  said,  "I 

or  we,  killed  two  d d  Yankees."     He  held  up  a  sword  and  said, 

there  was  Yankee  blood  upon  it.  If  he  had  seen  it  and  knew  it  to 
be  Yankee  blood,  it  would  have  been  almost  proof  conclusive  that  it 
was  the  blood  of  Durfee  ;  as  he  was  the  only  Yankee  slain  on  the 
occasion.  He  says  he  saw  McLood  at  Davis'.  But  you  cannot  find 
a  man  to  agree  with  him  in  this  statement,  because  he  says  it  was 
at  eight  o'clock,  and  it  is  stated  by  others  to  have  been  at  seven  ; 
but  as  to  the  time,  it  is  quite  immaterial. 

It  became  necessary  that  this  Quinby  should  come  all  the  way 
from  Pennsylvania,  and  have  his  expenses  paid  from  where  he  lives 
fo  Buffalo,  then  have  $10  given  him  to  get  to  Utica,  and  a  promi:-c 
of  pay  for  his  return,  and  for  his  time  also.  This,  gentlemen,  is  the 
man  we  find,  where  the  point  pressed  the  hardest,  ready  to  supply 
all  deficiencies.  He  probably  was  at  Chippewa  on  the  night  of  the 
•i9th.  And  if  he  was  there  on  the  '29th,  with  a  load  of  hay,  he  might 
have  seen  McLeod,  and  it  would  not  have  weakened  the  force  and 
strength  of  our  defence,  in  the  smallest  degree  ;  but  since  he  came 
here,  he  has  found,  that  it  was  much  more  important  to  have  seen 
him  in  the  morning.  Think  you  that  he  had  not  learned  that  those 
witnesses,  upon  whom  I  have  commented  before,  were  ready  to 
swear  that  they  saw  him  in  the  morning,  and  that  he  himself  has 
not  taken  courage  to  swear  that  he  also  saw  him  in  the  morning. 

We  will  now  see  what  reasons  he  assigns.  He  says  he  saw  Mc- 
Leod ia  the  morning  at  a  very  early  hour,  between  daylight  and 
sunrise,  not  far  from  the  end  of  the  bridge.  He  says  that  he  came 
in  with  a  load  of  hay  in  the  afternoon,  with  a  team  which  was  owned 
by  his  neighbor,  for  it  seems  he  was  not  himself  the  owner  of  a 
fa^m,  or  a  team.  H.i  did  not  know  where  the  hay  was  weighed  ;  he 
did  not  get  pay  for  his  hay.  The  man  who  brought  it  went  home, 
to  Sodom^  a  distance  of  about  five  miles ;  a  fitter  place  for 
this  man  could  hardly  be  selected  on  the  face  of  the  earth.  The 
man  went  away  and  left  him,  and  he  saw  McLeod  there  tibout  nine 
o'clock  in  the  evening.  According  to  his  story,  he  undertook  to 
walk  home  about  two  miles,  which  he  could  do  in  thirty  minutes. 
Well,  he  started ;  but,  did  he  get  home  ]  No,  he  stopped  at  Mr. 
Pettis\  about  half  way  to  Sodom.  He  never  had  staid  at  the  house 
of  Mr.  Pettis  before.  Was  he  invited  to  stay  that  night  1  Not  at 
all ;  why  did  he  stop  there,  and  stay  instead  of  going  home  to  his 
family  1  Why,  it  occurred  to  him  that  he  had  a  settlement  to  make 
with  the  commissary,  and  he  wished  to  return  early  in  the  morning, 
and  thought  he  would  stay  at  Mr.  Pettis'  over  niglil,  as  he  would  be 
just  so  far  on  his  way  next  day.     That  is  the  reason.     He  therefore 


MCLEOD  S    TRIAL. 


•271 


Itccl 


31)11 


LV  from 
he  vas 
vith  the 

was  no 

around 
ie  came 
said,  "  I 
nd  said, 
ew  it  to 
e  that  it 
n  on  the 
nnot  find 
s  it  was 
t  seven  ; 

the  way 
!  he  lives 
L  promi:-e 
211,  is  the 
to  supply 
ht  of  the 
he  might 
force  and 
;  he  came 
lave  seen 
,hat  those 
ready  to 
mself  has 
orning. 
saw  Mc- 
light  and 
le   came 
as  owned 
tvner  of  a 
hed  ;  he 
nt  home, 
place    for 
th.     The 
jout  nine 
ertook  to 
minutes, 
d  at  Mr. 
the  house 
Not  at 
me  to  his 
t  to  make 
morning, 
would  be 
therefore 


left  Pettis',  and  having  only  fifteen  minutos'  walk  instead  of  thirty, 
he  g-ot  to  Chippewa  about  sunrise.  Well,  did  he  do  any  business  at 
the  office  of  the  commissary  !  He  did  not ;  but  he  passed  by  Davis', 
rind  there  he  chanced  to  see  ^IcLcod  nt  the  end  of  the  bridge.  He 
went  on  to  the  olfice,  lliinking  that  lie  rviiaht  find  the  clerk  "in.  He 
-itaid  there  without  his  breakfast,  and  finally  got  home  about  noon, 
without  seeing  the  connnissary  general  or  his  clerk;  without  his 
money,  and  without  his  breakfast.  He  could  not  but  have  known 
that  these  offices  are  not  open  until  nine  o'clock,  but  he  foi'n'J  it 
necessary  to  furnish  some  excuse  for  being  back  at  Chippewa  in  the 
rnorning. 

If  you  can  believe  this  long  slory  of  Quinby's — if  it  does  not 
carry  its  utter  overthrow  upon  the  very  face  of  it — we  may  be 
obliged  to  show  you  something  of  his  character.  Lott  and  Wet- 
more,  both  of  Pennsylvania,  say  they  would  not  believe  him  on 
oath.  That  is  his  reputation  where  he  is  best  known.  It  is  a  re- 
mark of  the  neighborhood — "  If  you  want  a  man  to  swear  up  to  the 
mark,  call  on  Quinby."  He  came  here  and  has  sworn  up  to  the 
mark,  as  perfectly  as  in  Warren  county,  Pennsylvania. 

If  you  are  satisfied,  and  can  put  reliance  in  him,  as  he  has  come 
so  fully  up  to  the  mark,  you  will  give  to  Ins  testimony  ail  the  con- 
sideration it  deserves. 

We  will  now  pass  to  Justus  F.  T.  ^icvcns.  T  did  not  ask  this 
witness  a  word,  for  I  saw  the  pain  and  distress  that  my  adversaries 
endured  while  he  was  upon  the  stand.  He  had  not  got  his  lesson. 
He  is  contradicted  by  every  other  witness  whom  they  have  brought 
before  you.  After  he  had  told  his  story,  he  was  permitted  to  re- 
tire. I  do  not  recollect  whether  it  was  after  you  had  retired,  but  I 
saw  the  same  Justus  F.  T.  Stevens  coming  forward  to  the  stand, 
where  he  received  a  certificate  of  attendance  here,  to  entitle  him 
to  a  reward  for  his  services — the  stipulated  price  to  be  paid  for  per- 
jury. This  is  the  man  who  spoke  of  seeing  three  boats  put  ofT  di- 
rectly '^lom  the  cut  across  the  river,  and  come  back  to  the  same  place. 

This  brings  me  to  another,  who  was  considered  by  the  prosecu- 
tion an  important  witness.  /  thought  he  was  entitled  to  be  placed 
alongside  of  Parke.  It  was  fun-and-frolic  Leonard  Anson.  He  was 
among  the  latest  witnesses.  I  have  no  doubt  the  Attorney  General 
had  been  deceived.  When  they  made  their  foraier  statements, 
.hey  perhaps  were  not  crf-ss-examiried.  I  will  not  believe  that  those 
who  had  ttie  management  of  this  prosecution  ever  had  ci..y  just  con- 
ception of  the  charactpr  of  their  testimony.  One  thing  I  have  re- 
gretted that  among  the  number  of  the  prosecuting  counsel — com- 
posed (/  gentlemen  whose  reputation  stands  high  for  professional 
ability — gentlemen  holding  high  and  responsible  judicial  offices 
imder  the  government — that  not  xne  among  them,  when  this  testi- 
mony wa«  concluded,  had  risen  and  said:  This  testimony  will  not 
justify  a  conviction  'Yf*txe  is  so  much  doubt  thrown  over  this 
;ase  that  we  cannot    isk  r  verdict  of  guilty. 

If  this  had  been  rione,  o  would  have  been  an  antidote  for  many 
evidences  of  asperity  For  the  evidence  which  hiis  been  given  has 
not  been  confined  under  a  wishel ;  it  has  been  given  in  open  day : 


P 


'■    \: 


'|::'kli- 


^^-l; 


27-i 


Gould's  reporter. 


it  has  already  gone  forth  to  the  work) ;  it  will  be  read  by  our  reading) 
cotninuriity — by  ihc  European  reading  community  ;  and  throughout 
Christendom.  The  public  v  ill  read  and  will  judge  it;  and  it  may 
.safely  be  said,  they  would  justify  the  prosecuting  counsel  in  rising 
in  their  places  and  disclaiming  a  verdict  of  guilty. 

I  spoke  of  this  Leonard  Anson.  I  am  willing  to  leave  to  the 
learned  gentlemen  the  conduct  of  their  case  ;  but,  at  the  same  time, 
I  claim  the  right  to  judge  of  the  manner  in  which  it  is  conducted  ; 
and  having  formed  a  deliberate  judgment,  I  claim  the  right  to  ex- 
press it  ;  and  I  have  thus  frankly  expressed  it  before  you. 


This  Leonard  Anson  was  in  bed  at   l^liilo  Smith' 


Th 


ere  was  a 


sentinel  at  the  door  ;  he  got  up  and  looked  out,  and  saw  the  Caro- 
line burning.     He  went  to  Davis'  tavern  ;  where  he  heard   McLeod 

say  that   he  had   killed  one  d d   Yankee,   holding   out  a  pistol 

which  had  blood  upon  it.  He  afterwards  heard  of  McLeod's  arrest 
before  Squire  Bell,  and  he  went  forwai'd  as  a  witness  on  that  occa- 
sion. I  have  taken  the  pith  and  marrow  of  this  testimony,  and  you 
will  judge  whether  there  is  any  fun  in  it  at  all.  In  the  first 
place,  he  stated  that  it  was  just  t  the  dawn  of  day — when  light 
scarcely  was  streaming  from  the  horizon — it  wrs  not  sunrise — ii 
was  not  broad  daylight,  when  he  went  from  Smith's  over  to  Davis'. 
Arrain,  he  states  that  the  lights  were  all  blown  out.  Do  not  forget 
that,  for  he  says  so.  We  bring  him  to  Davis'  tavern,  then,  just  as 
the  day  peeped  ;  here  is  a  room  full  of  men  discussing  the  question 
as  to  who  had  committed  the  greatest  crime — McLcod  declareti 

that  he   had  killed   one  d d  Yankee.     Witness  saw  the  pistol. 

six   inches  besmeared  with  blood.     He  resided   at    Niagara  Falls. 

Mr.  Spencer  here  recapitulated  the  whole  of  the  testimon}'^  of  this 
witness,  and  proceeded  to  remark  : — 

Here  you  have  the  story  of  this  itinerant  witness.  I  have  read 
his  testimony  pretty  fully ;  and  now  I  want  you  to  bear  in  mind, 
that  he  went  over  just  at  the  break  of  day  ;  that  he  saw  the  bloody 
pistol  in  the  darkness  of  the  room,  when  every  body  knows  that 
these  horseman's  pistols  are  very  ne^  "ly  the  color  of  blood.  An- 
other singular  circumstance  is,  that  this  man  should  have  lived  at 
Smith's,  bedded  and  boarded  with  him,  come  to  Lockport  with  him. 
and  been  constantly  with  him,  and  never  mentioned,  until  after 
McLeod  was  arrested,  what  he  knew;  but  when  Smith  went  to  tes- 
tify, and  having  been  unable  to  make  himself  believed,  sent  ofl 
twenty-one  or  two  miles,  in  the  night-time,  for  this  witness — he  was 
then  ready  to  swear  to  this  story,  which  it  had  never  been  con- 
venient for  him  to  tell  before  that  day.  If  you  are  inclined  to  believe 
him,  I  have  nothing  to  say. 

John  C.  Davis,  I  will  have  occasion  to  allude  to  again,  when  1 
come  to  our  part  of  the  case. 

Philo  Smith  supported  Drown  ;  now.  Drown  will  support  Smith  ; 
and  Corson  will  support  Caswell,  and  Caswell  the  Smiths  ;  you  may 
thus  go  round  the  Avhole  circle  ;  and  I  wonder  that  had  not  been  re- 
ported to,  for  they  are  ready  to  swear  for  one  another. 

I  will  now  comment  for  a  single  moment  upon  the  evidence  of 
James  M.  Dvke.     He  would  not  own  that  he  was  a  stage-driver, 


mm 


!.i. 


MCLEOD  S    TniAL. 


273 


read  in  «> 
oiighoui 
i  it  may 
in  risint! 

'e  to  the 
me  time, 
nducted  ; 
;ht  to  ex- 

2 re  was  a 
tlie  Cani- 

McLeod 
t  a  pistol 
d's  arrest 
hat  occa- 
',  and  you 

the  first 
'hen  liglit 
LUirise — it 
to  Davis', 
not  forget 
•  n,  just  :is 
e  question 
I  declared 
ihe  pistol, 
rara  Falls. 

ny  of  this 

lave  read 
in  mind, 
e  bloody 
news  that 
ood.     An- 
e  lived  at 
with  him. 
nntil  after 
nt  to  tes- 
sent  ofl 
s — he  was 
jeen  con- 
to  believe 


in,  when 


>rt  Smith  ; 
;  you  may 
)t  been  re- 

idence  of 
lore-driver, 


but  he  had  been  entrusted  to  receive  the  pay.  I  wonder  whether 
he  has  not  been  employed  to  lie  too.  He  was  called  to  disparaire 
the  examination  of  McLeod  before  Judge  Bowen  or  Bell.  McLeod 
had  stated  before  Bell  or  Bowen,  that  on  his  return  from  Stamford, 
he  met  one  James  M.  Dylcc.  McLeod  \oiiched  him,  to  prove  that 
he  was  not  at  Chippewa.  They  then  called  James  IM.  Dyke  to  swear 
he  did  not  see  McLeod  atthrt  time,  and  he  did  swear  so,  most  stout- 
ly ;  he  must  have  a  pretence  for  his  inconsistency,  and  he  says  Mc- 
Leod was  mistaken  altogether  ;  that  he  met  him  at  Stamford  on  the 
morning  that  the  patriots  deserted  the  Island  ;  and  that  a  boat  was 
sent  from  the  Canada  shore  to  take  off  a  single  individual ;  lie  says 
that  was  the  morning  that  he  met  McLeod.  Well,  how  did  he  see 
him  I  McLeod  had  stated  that  he  met  Dyke  a  little  way  from  the 
Pavilion.  On  the  morning  of  the  30th  December,  Dyke  swore  that 
he  saw  McLeod  hitching  a  hoktie  ;  but  he  intended  it  as  a  contradic- 
tion. I  have  no  doubt  the  circumstance  he  mentioned  was  false  ; 
it  was  one  of  those  wicked  devices  which  have  been  practiscMl  to 
get  up  a  pretence  to  sustain  them  in  iniquity.  What  further  did  he 
swear  to  when  he  came  into  our  hands  /  He  would  swear  that  he 
did  not  see  McLeod,  but  did  leave  the  Pavilion  to  go  to  Niagara  on 
the  30th  December.  If  Dyke  did  go  from  the  Pavilion  to  Niagara 
on  the  hour  mentioned,  McLeod  may  have  seen  him  and  Dyke  not 
have  seen  or  noticed  McLeod.  But  he  had  told  that  he  did  meet 
McLeod,  and  never  discovered  his  error  until  quite  recently.  It 
came  as  suddenly  as  it  did  across  the  mind  of  another  witness  that 
Caswell  was  present — as  suddenly  as  electricity  itself.  He  had  de- 
clared that  he  m.et  McLeod  on  the  way  ;  and  this  James  M.  Dyke 
was  called  to  overthrow  the  deliberate  declaration  of  McLeod  when 
he  was  examined  before  the  magistrate  ;  for  there  they  could  sum- 
mon James  M.  Dyke,  Mr.  Morrison,  and  his  whole  family.  Press, 
and  a  cloud  of  witnesses  to  give  the  lie  direct  before  Judge  Bell. 
And  so  before  Judge  Bowen  on  the  habeas  corpus.  I  have  done 
with  Dyke,  and  it  brings  me  almost  through  this  painful  business. 

We  come  now  to  the  testimony  of  Timothy  Wheaton.  When  the 
prosecution  rested,  I  advertised  the  Attorney  General  that  we  should 
insist  upon  the  rule  of  law,  that  no  further  confirmatory  evidence 
would  be  admitted.  I  did  not  then  disclose  the  reason  ;  but  I  now 
do,  thus  disclose  it :  I  knew  there  were  hordes  of  witnesses  here  who 
would,  if  it  became  necessary,  come  forward  ;  that  it  would  be  in 
his  power  to  add  any  number  of  witnesses  to  those  already  called. 
I  intended,  therefore,  that  he  should  exhaust  his  privilege,  and  nc 
further  door  should  be  thrown  open  into  which  the  step  of  perjury 
could  enter. 

But  the  Attorney  General  seemed  to  differ  from  us,  he  declared 
afterwards  in  the  presence  of  the  court,  and  I  have  no  doubt  he  did 
it  sincerely,  that  he  embraced  also  the  absent  witnesses  whom  he 
had  left,  and  upon  his  word  as  a  gentleman  the  court  allowed  him  to 
come  in  and  examine  those  witnesses.  I  at  the  time  made  no  com- 
plaint against  it,  and  I  make  none  now,  I  make  him  welcome  to 
every  pound,  ounce,  scruple,  and  grain  of  evidence  which  he  derived 
from  those  witnesses ;  he  needs  it  all,  I  would  not  detract  one  par- 

35 


(  ■ 


■rA  Ci 


^' 


is 


M- 


i!: 


274 


GOULD  3   REPORTER. 


\:'i 


It 


tide.  With  every  support  which  can  be  gathered  on  all  sides  his 
case  can  hardly  stand  alone,  and  I  will  not  therefore  desire  to  take 
any  thing  from  him. 

Now  this  same  Timothy  Wheaton  was  not  at  Chippewa,  he  lived 
at  Whitby  some  thirty-five  miles  from  Toronto.  He  says  in  October, 
one  year  after  the  afl'air,  that  he  was  at  Niao;ara  ferry  ;  that  he  then 
lived  at  Whitby,  and  was  never  at  Niagara  before  ;  that  he  bad  star- 
ted to  go  to  Lockport ;  and  when  asked  why  he  did  not  go,  he 
said  because  he  would  have  to  get  a  pass,  so  he  turned  about  and 
went  back  to  Whitby  again.  Yon  see  again,  how  foolish  a  man  can 
be  as  well  as  how  wicked.  Did  you  ever  hear  a  more  foolish  thing 
than  the  story  related  by  this  same  witness  ;  first  that  he  should 
have  left  Whithj"^  and  travelled  to  Niagara,  with  a  view  of  going  to 
Lockport,  and  not  cross  the  river  because  he  would  have  to  get  a 
pass  ;  but  turned  back  and  went  to  Whitby  again.  No  cause  for  his 
coming,  no  cause  for  his  returning,  except  that  he  had  heard  a  con- 
versation from  McLeod,  so  that  he  could  come  into  court  and 
swear. 

Again,  I  submit  to  you,  gentlemen  of  the  jury,  whether  you  will 
believe,  if  McLeod  has  one  drop  of  European  blood  coursing  in  his 
veins,  he  would  have  opened  a  conversation  of  this  kind  with  this 
witness.  It  outstrips  the  veriest  Yankee.  I  never  knew  a  man  from 
the  utmost  confines  of  Ehode  Island  or  Connecticut,  with  all  his 
eagerness  in  boasting  of  the  excellencies  of  his  wife,  and  the 
success  which  had  attended  his  peddling  enterprises,  who  suffered 
himself  to  be  guilty  oi  so  very  foolish  a  volunteer  statement,  never  ; 
and  do  you  believe  all  this  1  that  a  man  like  McLeod,  coming  from 
a  land  where  they  are  famed  for  their  silence,  would  have  been  guilty 
of  such  an  indiscretion  ?  Though  last  this  witness  may  be  regarded 
as  not  least  in  the  stock  of  evidence.  Welcome  ;  1  bid  the  prose- 
cution thrice  welcome  ;  and  this  brings  me  towards  a  close — it  only 
remains  forme  to  allude   to  the  evidence  r"    'Hlliam  Dejield. 

What  was  he  called  for  1  To  impeach  the  veracity  of  Captain 
Morrison,  and  for  no  other  purpose.  Who  is  this  man '!  It  is 
enough  to  know  that  he  was  a  British  soldier  in  Canada,  while  the 
patriots  were  on  Navy  Island,  and  that  from  the  service  of  his 
country,  where  he  had  taken  the  oath  of  allegiance,  he  deserted  in 
the  night  time,  and  came  to  Navy  Island  ,  who  did  he  find  there  1 
William  Lyon  McKenzie  ;  who  would  not  trust  him  at  all,  but  put 
him  in  gaol  and  kept  him  until  the  Island  was  evacuated  ;  for  fear 
he  would  spy  out  "  the  nakedness  of  the  land,"  and  return.  Wil- 
liam Lyon  McKenzie  never  did  a  wiser  act — I  have  no  cause  to  com- 
plain of  his  conduct ;  if  he  had  kept  him  there  to  the  present  hour, 
he  would  have  been  just  as  useful  on  this  trial  as  he  has  been. 

This  same  William  Defield  said  that  the  only  conversation  he  had 
with  Morrison  was  when  Morrison  gave  his  evidence  at  Niagara  in 
which  Morrison  said  he  could  not  swear  positively  that  McLeod 
was  at  his  house  on  the  night  of  the  29th  December,  that  he  had 
been  there  a  great  many  times  ;  he  says  that  was  the  only  conversa- 
tion he  ever  had  on  the  affair,  and  now  v/hen  he  swore  here,  he  stated 
that  he  had  heard  Morrison  at  his  own  house,with  his  own  family,  ex- 


Mcleod's  trial. 


275 


I  •  1     ' 


ides  his 
i  to  take 

he  lived 
October, 

he  then 
had  slar- 
3t  go,  he 
bout   and 

man  can 
lish  thiniT 
he  should 

going  to 

to  get  a 
ise  for  his 
ird  a  con- 
court  and 

ir  you  will 
sing  in  his 
I  with  this 
man  from 
ith  all  his 
;,   and   the 
lo  suffered 
ent,  never  ; 
iming  from 
Deen  guilty 
e  regarded 
the  prowe- 
se — it  only 
'ield. 

of  Captain 
Ian?  It  is 
^  while  the 
ice  of  his 
deserted  in 
ind  there  1 
all,  but  put 
;  for  fear 
urn.  Wil- 
ise  to  com- 
esent  hour, 
een. 

tion  ]it;  had 
Niagara  in 
McLeod 
lat  he  had 
conversa- 
j,  he  stated 
family,  ex- 


it 


press  a  strong  desire  that  the  American  government  would  get  hold 
of  McLeod  and  punish  him  for  the  part  he  had  taken  in  the  destruc- 
tion of  the  Caroline. 

This  is  the  evidence  of  the  redoubtable  Defield — this  deserter — • 
this  prisoner  upon  Navy  Island  ; — I  think  I  may  now  say  this  liar, 
prowling  about  ;  he  was  bore  to-day,  and  there  to-morrow.  I  can 
scarcely  speak  with  composure  of  tlicsp  miscreants,  when  brought 
up  to  swear  in  contradiction  to  that  which  has  been  testilied  by  per- 
sons of  respectability,  and  with  a  view  to  consign  to  the  gallows 
an  innocent  man  ;  I  have  much  difilculty  in  preserving  my  compo- 
sure. What  think  you  of  a  prosecution  for  murder  which  must  be 
sustained  upon  such  evidence  '?  I  have  now  gont^  through  witli  this 
branch  of  my  duty,  1  shall  not  name  nnolher  witness  individually, 
who  has  be^n  called,  but  speak  of  them  in  general.  From  Samuel 
Drown  down  to  Deficid — take  them  all;  put  them  together;  melt 
them  down  in  a  crucible,  and  see  how  much  virtue,  dignity,  and 
honesty  of  mind,  can  be  found  in  the  entire  mass. 

I  am  aware  I  have  dealt  somewhat  plainly  with  this  body  of  men, 
and  the  treatment  which  they  have  received  at  my  hands,  as  ex- 
amining counsel,  may  savor  of  harshness  and  unkindness.  Thej- 
are  to  me  strangers  ;  I  judge  of  them  by  their  conduct  and  story; 
and  believing,  ar  I  do,  that  every  material  word  is  a  fabrication, 
you  will  pardon  n)e  when  1  say,  that  I  have  no  sort  of  respect  for 
them  whatever ;  and  but  little  for  the  prosecution.  But  the  law 
officers  of  Government  are  not  answerable  for  this;  they  were  only 
called  on  to  sustain  the  indictment  as  they  found  it.  They,  however, 
in  my  judgment,  have  failed  to  do  their  duty  fully,  and  faitlifully ; 
they  were  influenced,  overwhelmed  by  the  excited  state  of  feeling 
along  the  frontier  ; — any  man  could  be  readily  indicted  there  ;  any 
county  which  would  give  rise  to  a  mob,  and  set  at  defiance  the 
ministers  of  justice,  is  capable  of  finding  an  indictment,  and  convic- 
tion upon  any  and  every  character  brought  before  them.  The  evi- 
dence of  an  unhealthy  and  unsound  state  of  morals  there,  induced 
the  removal  of  this  trial  elsewhere,  and  to  bring  it  to  the  central 
part  of  the  State ;  and  old  Oneida  was  selected  as  the  fit  portion  in 
the  State,  where  this  trial  should  be  had.  And  if  we  needed  any 
evidence  of  the  propriety  of  the  selection,  we  have  it  in  the  order 
and  absence  of  excitement  among  our  citizens  -in  the  perfect 
observance  of  the  laws  of  decency  and  propriety  which  has  been 
manifested  here  upon  this  trial.  I  rejoice  at  it.  I  am  willing,  liv- 
ing in  the  centre  of  the  great  State  of  New  York,  that  an  Oneida 
jury  shall  give  a  safe  deliverance  to  an  innocent  man,  and  take  him 
from  the  fa*" gs  of  a  combination  as  wicked  as  it  is  dangerous. 

I  have  now  gone  through  with  the  evidence  on  the  part  of  the 
prosecution,  and  I  ask  if  I  was  not  warranted  in  saying,  in  my  open- 
ing address,  that  I  had  no  fear  of  leaving  the  case  with  you  where 
the  prosecution  had  left  itl  I  ask  you,  if  you  would  feel  justified 
in  convicting  even  upon  the  prosecution  alone — notwithstanding 
these  midnight  witnesses  have  sworn  that  he  was  the  man  who  per- 
petrated the  offence  1  I  know  you  would  not  convict ;  it  is  impossi- 
ble that  you  could  give  credence  enough  to  this  entire  case,  without 


,.»:" 


% 


276 


GOULD  8    REPORTER. 


one  word  of  defence.  Would  you,  upon  such  testimony,  consign  a 
fcUow-being  to  the  pfallowsl  No!  no  such  degradation  would  be 
cart  upon  the  tribunals  of  justice. 

But  we  arc  not  at  liberty  to  sport  with  the  life  of  a  fellow-being ; 
we  have  endeavored  faithfully,  to  prepare  this  defence,  and  I  make 
my  acknowledgements  to  my  colleagues  for  thus  preparing  it ;  it 
evinces  a  greater  diligence  and  faithfulness,  on  the  part  of  those 
young  gentlemen,  than  I  have  for  myself  any  claim  to  the  discharge 
of.  IJut  I  came  into  the  defence  of  McLeod  at  a  later  day  than 
either  of  them.  They  dared  to  stand  forth  in  the  midst  of  a  Lock- 
port  mob,  which,  aided  and  fortified  as  it  was,  made  the  magistrate 
quail,  and  called  him  out  to  apologise,  for  having  dared  to  do  his 
duty!  My  learned  colleagues  dared  to  stand  up  and  send  forth  a 
manifesto  to  the  world,  that  the  conduct  of  the  populace  might  be 
condemned  by  the  world,  and  our  country  never  again  disgraced  by 
such  foul  proceedings. 

This  brings  me  briefly  to  notice  our  case  upon  the  defence  of  Mc- 
Leod. it  consists  of  two  species  of  evidence  which  have  been  ad 
iluced  before  you.  One  by  depositions,  the  other,  evidence  which 
was  delivered  orally,  by  witnesses  on  the  stand.  And  I  am  persuad- 
ed, gentlemen,  that  you  will  vastly  better  appreciate  the  testimony 
of  those  who  have  stood  before  you,  than  of  those  who  have  seiit  it 
to  you  by  writing. 

But  who  loses  by  it  ]  Is  this  the  misfortune  of  the  prosecution 
or  of  the  prisoner!  It  is  our  misfortune.  Those  who  live  in  Cana- 
da would  not  come  here.  They  are  not  to  throw  themselves  within 
the  grasp  of  these  men  who  live  along  the  borders,  and  are  ready 
to  seize  upon  any  one  whose  life  they  can  put  in  jeopardy  by  charg- 
ing him  with  murder.  They  did  not  see  fit  to  throw  themselves  in 
the  way  of  prosecution.  They  could  not  come.  We  sent,  and 
brought  the  testimony  which  they  have  given,  and  we  now  submit 
to  you  whether  it  be  for  this  reason  less  w^orthy  of  belief;  but  here 
again,  we  are  in  darkness  ;  the  opposite  counsel  have  said  nothing 
in  their  opening  remarks  or  in  the  progress  of  the  trial,  as  to  the 
manner  in  which  they  intend  to  treat  this  part  of  our  testimony. 
I  have  taxed  myself  to  know  what  they  will  say  to  detract  from  it, 
and  I  can  find  no  plausible  argument. 

We  commence  with  the  evidence  of  Sir  Allan  McNab.  There 
is  but  one  single  point  of  inquiry ;  where  was  McLeod  on  the  29th 
December,  1837. 

If  a  man  cannot  defend  himself  upon  such  evidence,  where,  oh 
where,  I  ask  can  he  be  safe  if  accused  of  murder  !  Where  is 
the  man  in  this  audience — who  is  there  that  can  look  back,  and  say 
where  he  was  on  a  particular  night,  and  call  to  his  aid  witnesses,  to 
show  where  he  was  1  Is  there  not  difliculty  in  this  ?  Is  it  not  hem- 
med in  with  difficulty!  It  seems  to  me  to  be  extremely  difficult; 
and  I  regard  it  an  outpouring  of  Divine  benevolence  that  has  put  it 
in  the  power  of  McLeod  to  show  so  satisfactorily  where  he  was  on 
that  memorable  night.  I  ask  if  we  have  not  first  shown  where  he 
was  not,  and  secondly  where  he  was  !  Will  it  be  the  argument  of 
our  learned  adversaries  that  they  were  all  implicated  in  a  lie !     1 


MCLEOD'S   TRIAL. 


ZTi 


iiild  be 

■being ; 
I  innke 
ff  it  ;  It 
f  those 
scharge 

ay  liian 
a  Lock- 
gistrate 

0  do  his 

1  forth  a 
night  be 
raced  by 

e  of  Mc- 
oeen  ad 
;e  which 
persuad- 
estimony 
^e  sent  it 

jsecution 
!  in  Cana- 
es  within 
ire  ready 
by  charg- 
iselves  in 
sent,  and 
w  submit 
but  here 
nothing 
as  to  the 
stimony. 
from  it, 

There 
the  29th 

here,  oh 
Where  is 
,  and  say 
nesses,  to 
not  hem- 
difficult ; 
las  put  it 
le  was  on 
where  he 
umcnt  of 
a  liel     I 


consider  that  it  depends  upon  the  state  of  moral  ft^cling  which  per- 
vades the  licarls  and  consciences  of  those  men  who  speak,  wliich 
determines  the  measure  of  credit  which  you  will  give  to  their  sto- 
ry. If  a  man  feels  that  he  is  a  felon — if  he  is  conscious  of  being 
degraded — that  he  has  taken  tlie  life  of  a  fellow-being,  and  has  just- 
ly forfeited  his  life  :  if  he  has  broken  his  neighbor's  house,  and 
stolen  his  money,  or  committed  any  other  ollenco  which  exhibits  a 
man  as  degraded  and  simk  to  the  level  of  the  brutes;  then,  indeed, 
may  you  doubt  the  story  which  that  man  tells  ;  but  think  you  that 
McNab  of  the  army,  or  Drew  of  the  navy,  or  McCormactk  of  the 
navy,  feel  degraded  by  the  part  which  they  took  in  the  destruction 
of  the  Caroline  1  Do  you  believe  the  British  Government  looks 
upon  them  as  degraded  1  Nor  are  they  degraded  in  the  eyes  of 
the  American  people  ;  look  over  this  vast  continent  and  inquire  of 
every  single  human  being  ;  interrogate  men  of  intelligence,  patri- 
otism, and  of  consideration,  and  if  you  receive  the  response  that 
they  are  degraded,  then  I  will  be  willing  to  give  up  the  defence. 

How  stood  these  men'?  Tliey  say  they  acted  in  obedience  to  the 
orders  of  their  Government :  I  will  say  they  did ;  but  it  is  said  that 
these  men  are  degraded  !  that  they  were  volunteers  in  the  perpe- 
tration of  a  crime  !  Volunteers!  Yes,  they  were  volunteers  at  their 
country's  call ;  into  that  service  every  man  to  the  niunber  of  2,500 
did  come  forth  voluntarily,  in  defenre  of  his  country.  These 
then,  are  the  degraded  individuals  !  subjects  of  Great  Britain  and 
her  dependencies.  I  trust  I  have  American  feelings  as  well  as  other 
men  around  me,  but  I  speak  of  Great  Britain,  and  her  Government, 
as  they  are  ;  if  there  is  a  country  under  the  light  of  Heaven,  whose 
subjects  have  reason  to  feel  a  conscious  pride  that  they  belong  to 
it,  it  is  that  country — it  is  Great  Britain,  our  own  dear  mother. 
To  that  country  and  her  laws  which  have  given  distinction  to  mon- 
archs,  statesmen,  jurists,  poets,  arlisans,  all  will  ur  ite  in  render- 
ing her  a  just  meed  of  veneration.  No  country  can  reflect  more 
honor  and  glory  upon  her  subjects — none  desei'ves  better  the  love 
and  veneration,  not  only  of  her  own  subjects  but  of  other  nations  ; 
and  I  ask  any  American,  who  claims  to  be  a  full  sharer  in  this  vast 
amount  of  national  honor,  which  may  well  be  accorded — descend- 
ants of  British  parents,  who  now  have  an  opportunity  to  speak  the 
same  language  before  an  American  tribunal ;  whether  that  is  not 
the  last  country,  where  men  hiding  commissions  under  its  Gov- 
ernment, and  those  under  them,  should  feel  degradation  from  obey- 
ing its  orders. 

It  is  said  they  were  volunteers  :  I  have  heard  of  other  volunteers 
before. 

I  will  give  you  the  memorable  instance  at  Yorktown  of  the  for- 
lorn hope  who  led  he  attack  upon  the  works  and  fortifications  of 
Cornwallis,  Who  held  and  occupied  the  place  of  Captain  Drew! 
That  forlorn  Jiope  was  headed  by  LAFAYETTE — the  forlorn  hope 
of  the  American  army  was  headed  by  Alexander  Hamilton.  They 
engaged  in  that  perilous  enterprise  ;  and  because  a  little  chosen 
band  have  ventured  to  volunteer  in  the  Canadian  cause,  are  they 
less  entitled  to  the  honors  and  immunities  of  war?  Never — never! 


If  n  !■■  -ni 


278 


rjOULD's  REPORTER. 


T^ecnusc  Captain  Drew  at  the  sijofrestion  AIcNab  nnilertook 
this  enterprise — be«;ause  IMcCorniaoK,  EInisly  and  Mosicr,  uiuler- 
took  voliMiliuily  this  enterprise,  are  tliey  in  the  fsiimation  of  the 
world  iTiurderers  1  Never — never;  until  you  can  degrade  Hamilton 
and  LaFayette  to  tlie  level  of  murderers.  Well  did  McNab  declare 
to  one  or  two  of  his  friends,  by  whom  the  danprr  of  the  enterprise 
was  fully  understood,  "If  you  miss  your  aim  a  glorious  winding 
sheet  awaits  you  below  the  cataract."  Navy  Island  iu  scarcely  a 
mile  above  the  rapids  which  descend  to  the  mighty  cataract  of  Ni- 
iigara.  It  it:  but  about  three  fourths  of  a  mile  from  Navy  Island 
to  that  place  from  which  no  bark  ever  did  or  can  return;  the 
current  passing  at  the  rate  of  six  miles  an  hour,  ten  minutes  delay 
would  have  taken  them  wliere  their  fate  would  have  been  remedi- 
less!  Shrouded  in  darkness  they  put  forth,  and  think  you,  when 
they  encountered  the  perils  of  the  deep,  and  of  the  darkness,  and  of 
the  cataract,  that  those  gentlemen  wi!ose  names  have  been  men- 
tioned regarded  themselves  as  murdererL'  1  If  so,  detract  from  the 
credit  of  their  testimony. 

If  when  the  tables  are  turned, and  Americans  destroy  marauders, 
who  dare  to  tread  upon  our  soil,  for  the  performance  of  those  per- 
ilous entefprises  you  commend  them,  then  you  will  commend 
these  men. 

McLeod  stands  charged  with  murder.  I  wonder  what  would  have 
been  said  by  this  coimtry  and  this  government,  if  the  Canadians  had 
come  forward  and  planted  their  standard  upon  Grand  Island,  in  tlie 
Niagara  River,  and  our  militia  would  refuse  to  drive  them  off? 
What  would  be  said  to  them  if  theyhad  not  hearts  equal  to  the  dis- 
charge of  that  duty  ?  They  would  no  longer  deserve  the  protection 
of  the  government ;  but  I  will  not  dwell  upon  these  circumstances. 
I  know  the  reputation  of  these  men  is  to  be  assailed,  and  I  have 
only  done  it  to  show  that  so  far  from  their  being  engaged  in  an  en- 
terprise calculated  to  militate  against  their  honor,  it  should,  on  the 
other  hand,  elevate  it;  for  almost  universally  where  you  find  a  brave 
mar,  you  find  a  generous  and  a  just  man. 

The  question  then  is,  was  Alexander  McLeod  in  that  party  1 
Who  has  the  best  opportunity  to  know  ■?  Is  it  those  witnesses  who 
come  here  on  the  part  of  the  government,  or  the  men  who  were 
engaged  in  the  enterprise  at  the  time  !  Col.  McNab  Avas  a  man  who 
saw  almost  every  man,  and  who  actually  knew  a  large  portion  of 
them.  He  knew  McLeod  well,  and  thinks  he  was  not  there  ;  he  re- 
turned a  list  to  Governor  Head,  and  McLeod's  name  was  not  among 
the  number  contained  in  that  list. 

Why  was  this  list  made  out  1  I  answer  :  it  was  because  those 
who  were  engaged  in  the  expedition  had  been  engaged  in  a  perilous 
enterprise.  It  had  been  successfully  executed.  They  had  returned, 
and  having  thus  returned  were  entitled  to  the  glory  of  the  achiev- 
ment;  for  it  was  thus  esteemed  by  them.  It  is  among  the  common 
occurrences  that  those  who  have  distinguished  themselves  in  battle, 
and  encountered  dangers,  should  have  their  names  enrolled  in  the 
archives  of  the  government.  It  was  for  that  reason  that  a  list  was 
made  out  j  and  I  ask  you  whether  the  evidence  of  Col.  McNab  alone 


not, 
it. 


GOULD  8    RErORTEn. 


S79 


lulertook 
r,  iiiuler- 
)ii  of  the 
llatnilton 
b  declare 
!iiterprise 
winding 
oiirccly  a 
ct  of  Ni- 
vy  Island 
turn  ;  tho 
tes  delay 
1  reniedi- 
ou,  when 
ss,  and  of 
>een  nien- 
,  from  the 

laraudcrs, 
hose  per- 
commend 

irouldhave 
idians  had 
and,  in  tho 
them  ofF! 
to  the  dis- 
protection 
imstances. 
nd  I  have 
i  in  an  en- 
nld,  on  the 
ind  a  brave 

lat  party  1 
lesses  who 

who  were 
a  man  who 
portion  of 

re ;  he  re- 
not  among 

luse  those 

a  perilous 

1  returned, 

;he  achiev- 

e  common 

s  in  battle, 

lied  in  the 

;  a  list  was 

Nab  alone 


is  not  sufficient  to  ovc-tlirow  the  testimony  of  all  those  who  have 
been  hrounrjit  forward,  on  the  part  of  tiie  prosecution.  Next  is  Mr.  Har- 
ris, Aiil-dc-Camp  to  Captain  Difw,  \\v  says  that  he  knew  alniofl  i;very 
man  in  the  expedition,  and  hrlpcd  to  nialu;  il  up.  He  says  that  a 
list  of  the  names  was  taken  down  at  the  lime  of  disembarking,  and 
completed  by  another  person  who  had  it  in  oharpfe,  and  furnished 
to  Col,  McNab,  and  upon  tliut  list  the  name  of  Alexander  iMcLeud 
was  not  to  be  found. 

Having  disposed  of  these  two  points,  I  will  dispatch  another  mass 
of  evidence  in  very  few  words.  It  having  been  taken  on  commission, 
the  questions  must  be  general,  and  the  answers  are  results ;  they 
never  can  contain  details — but  they  present  llie  great  and  leading 
facts  contained  in  the  case. 

What  is  that  evidence  \  It  is  that  seven  boats  started  on  that 
expedition  ;  that  a  certain  number  of  men  went  on  tlutse  boats, 
eight  in  each,  except  tliat  of  Drew,  and  that  had  nine,  live 
reached  the  Caroline,  two  lay  in  the  stream  for  a  short  time,  but 
ultimately  boarded  the  Caroline.  Two  failed,  and  were  oblifred  to 
return  to  the  Canada  shore.  They  landed  on  lUick-horn  Island,  for  a 
time.  The  oarsmen  were  not  good,  and  they  fell  back,  but  finally 
made  their  way,  and  landed  on  he  Island  to  rest.  They  l)ad  to 
contend  against  the  mighty  ciurcnt  of  Niagara;  six  miles  to  the 
hour,  to  keep  from  going  over  the  falls. 

I  ask  you  whether  the  men  who  had  a  hand  in  making  up  this  par- 
ty, and  who  knew  Alexander  McLeod,  can  be  mistaken  I  Aio  they 
mistaken  1  Can  there  be  any  doubt,  when  they  say  th'  /  know  not 
where  he  was  !  But  one  thing  Uiey  did  know  :  "  he  was  not  on  board 
the  boat  which  I  commanded;  ne  was  not  in  the  boat  in  which  I 
went;  that  I  do  know."  And  that  thing  is  the  very  thing  which  yo\i 
are  desirous  to  know;  and,  knowing  it  settles  and  decides  the  fate 
of  Alexander  McLeod.  It  is  the  only  thing  to  understand — the 
only  thing  about  which  you  need  to  be  informed. 

Was  he  on  any  of  those  seven  boats'?  If  he  was,  then  your  duty 
is  plain,  though  painful.  If  not,  then  equally  plain,  and  vastly  more 
pheasant. 

You  have  heard  the  evidence ;  it  has  been  read  before  you  ;  it  is 
the  evidence  of  brave  and  honorable  men,  who  have  no  cause  to 
support  other  than  that  of  truth.  Believing  them,  then,  there  is  no 
difficulty  in  finding  that  he  was  not  on  board  the  boats  which  left  in 
pursuit  of  the  Caroline.  This  one  question,  and  this  one  only,  re- 
mains to  be  considered.  This  is  not  material,  except  to  show  that 
he  was  not  on  the  boats ;  as  those  officers  who  composed  the  party, 
and  who  have  given  evidence,  have  fully  shown.  I  will  glance  at 
this  evidence  very  hastily. 

First,  you  will  notice  a  little  discrepancy  in  the  evidence,  as  to 
the  horse  of  McLeod.  I  presume  that  my  learned  friend  will  not  for- 
get about  the  horse,  and  he  is  welcome  to  all  he  can  make  of  it.  I 
regard  it  as  wholly  immaterial  whether  he  had  a  horse  with  him  or 
not,  because  we  have  strength  of  evidence  enough,  independent  of 
it.     It  has  been  attempted  to  show  that  Press  speaks  of  a  diflerent 


.ri 


f^ 

J 

filifltit i  •    J'i 

1 

lUilBi  r^  t| 

■.% 


^. 


Vv^, 


o^.  \t 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


y 


^ 


.</ 


/^ 

^  .<^^^ 


,v^x^ 


^^ 


V^ 


/. 


fA 


1.0 


I.I 


1.25 


us 


—  |2j8    1 2.5 
1^    12.2 


t 


"  lis  lllllio 


LA.  111116 


V] 


<^ 


/^ 


^> 


.>.  >^. 


V 


'/ 


/A 


Photographic 

Sciences 

Corporation 


23  WEST  MAIN  STREET 

WEBSTER,  N.Y.  14580 

(716)  873-4503 


V 


-^^ 


\\ 


LV 


^  A  '  ^^ 


280 


MCLEOD  S   TRIAL. 


time  from  that  spoken  of  by  other  witnesses.  In  no  other  respect 
is  it  material  whether  he  took  a  horse  or  not.  It  is  enough  that  he 
went,  whether  with  or  without  the  horse  ;  but  it  is  due  to  the  case 
to  say  that  you  have  heard  the  confession  of  McLeod,  and  his  hon- 
or will  tell  you  that,  so  far  as  it  makes  for  him,  it  will  be  received. 
You  have  a  right  to  consider  it  ;  and  having  considered  it,  if  com- 
patible with  circumstances,  and  not  contradicted,  you  have  a  right 
to  believe  it.  McLcod  says  that  he  left  after  dark,  having  called 
for  his  horse  ;  he  may  have  been  mistaken,  he  had  so  often  gone 
from  Davis'  to  Stamford  on  horseback,  as  well  as  every  other  way. 
He  had  so  freqnently  passed  along  there,  he  may  well  have  con- 
founded one  time  with  the  other.  McLeod  says  he  rode  in  the 
wagon  with  Press,  to  Stamford.  That  was  his  confession.  He 
says  his  horse  was  hitched  to  the  wagon.  Mr.  Press  says  that  he 
got  into  his  wagon,  having  spoken  before  to  get  in  with  him : 
whether  at  Davis',  or  at  Stocking's  quarters,  he  is  unable  to  tell 
you  ;  but  this  much  he  does  say,  that  he  has  no  recollection  of 
McLeod's  having  a  horse  with  him  that  night.  That  he  rode  in  his 
wagon,  he  knows. 

Archibald  Morrison  says  that  he  first  saw  McLeod  coming  into 
his  father's  house  that  night,  but  whether  he  came  on  horseback,  or 
otherwise,  he  does  not  know  ;  but  he  put  out  his  horse,  and  brought 
it  up  the  next  morning.  But  he  had  put  out,  and  taken  up  the 
horses  of  McLeod  so  frequently,  while  they  were  kept  at  the  stable 
of  Mr.  Morrison,  that  even  he  may  be  mistaken ;  because  on  that 
night,  as  well  as  on  former  occasions,  he  had  put  out  the  horse  of 
McLeod.  - 

Davis,  the  tavern-keeper,  rememoers  well,  that  on  the  29th  De- 
cember McLeod  went  to  bed  at  his  house,  at  about  3  o'clock  ;  that 
he  rose  in  the  evening,  called  for  his  horse,  and  started ;  and  that 
was  the  last  he  saw  of  him.  It  is  due  to  Mr.  Davis  to  say  that 
McLeod  had  been  there  so  often,  and  had  his  horse  brought  up  for 
him,  that  he  might  be  mistaken.  Still  this  may  be  true,  without  in 
the  slightest  degree  impeaching  the  veracity  of  Davis,  of  Morrison, 
or  of  McLeod.  It  would  show  that  Press  was  wrong,  when  he  says 
that  there  was  no  horse  fastened  to  the  wagon  ;  that  Archibald 
Morrison  was  right  about  putting  the  horse  out ;  that  McLeod  is 
right,  when  he  says  he  led  the  horse  by  the  wagon,  and  that  Press 
himself  has  now  forgotten  the  circumstance  that  the  horse  was 
along.  I  make  them  welcome  to  either  horn  of  the  dilemma — ei- 
ther one,  or  both.  They  need  it,  and  they  are  welcome  to  it ;  this 
is  wholly  immaterial. 

I  will  show  you  the  starting  point.  How  does  Mr.  Press  fortify 
himself.  He  tells  you  that  he  kept  a  public  house  at  Niagara; 
that  on  the  29th  of  December  he  went  to  bear  two  passengers  to 
Chippewa  ;  that  one  returned  with  him  ;  that  he  ma^^e  an  entry  in 
his  cash-book,  because  he  has  a  partner.  That  entry  shows  that 
five  dollars  were  paid  as  compensation  for  transporting  those  gen- 
tlemen to  Chippewa.  He  cannot  tell  you,  in  the  abstract,  about 
making  the  entry,  or  about  their  paying  the  five  dollars.     One  thing 


vA;, 


t  T 


MCLEOD  S   TRIAL. 


281 


er  respect 
gh  that  he 

0  the  case 
id  his  hon- 
;  received. 
it,  if  com- 
ave  a  ripht 
viiig  called 
often  gone 
jther  way. 

1  have  con- 
rode  in  the 
ission.  He 
ays  that  he 

with  him : 
lable  to  tell 
)llection  of 
rode  in  his 

joming  into 
)rseback,  or 
md  brought 
uken  up  the 
It  the  stable 
iiise  on  that 
he  horse  of 

[he  29th  De- 
clock  ;  that 
d ;  and  that 
to  say  that 
)ught  up  for 
!,  without  in 
of  Morrison, 
fhen  he  says 
it  Archibald 
t  McLeod  is 
d  that  Press 
»  horse  was 
ilemma — ei- 
e  to  it ;  this 

Press  fortify 
at  Niagara ; 
assengers  to 
!  an  entry  in 
shows  that 
g  those  gen- 
stract,  about 
One  thing 


he  does  remember,  that  he  went  to  Stamford  and  Chippewa  ;  and 
as  to  the  time,  the  date  fi.xes  it.  It  is  like  the  entry  of  a  name  upon 
the  register  at  one  of  the  hotels  in  this  city.  Suppose  the  clerk 
should  be  called  on  to  prove  when  a  man  was  there,  do  you  suppose 
he  could  remember  writing  every  name  upon  the  register  of  per- 
sons who  put  up  there  in  the  course  of  six  months  ?  No  ;  but  he 
would  tell  you  this  :  When  a  stranger  arrives,  if  he  does  not  write 
his  own  name,  I  write  it  for  him ;  and  I  never  make  such  entries 
unless  they  are  compatible  with  truth.     Further  he  cannot  (ro. 

What  does  Press  say  1  He  looks  at  his  ca.sh  book  and  finds  such 
an  entry  there,  like  those  of  a  previous  and  subsequent  date.  Again 
he  tells  you  that  upon  the  following  morning  he  heard  of  the  de- 
struction of  the  Caroline. 

What  further  have  we  1  We  have  a  witness  of  whom  I  had  no 
previous  knowledge  till  he  chanced  to  come  from  Montreal  here ; 
we  detained  him  on  subpoena ;  he  proves  that  this  William  Press 
was  a  friend  of  his  for  v/hom  he  entertained  a  high  respect  ;  that 
while  in  command  at  Chippewa,  Press  visited  there  and  dined  with 
him.  After  dinner,  to  pay  the  respect  due  to  Press,  he  walked  up 
with  him  to  the  head  of  Navy  Island.  That  while  walking  up  or 
down  they  saw  the  Caroline  passing  to  and  from  Navy  Island. 

The  evidence  is  that  she  left  Buifulo  on  the  morning  of  the  29th. 
That  she  made  two  trips  from  Schlosserto  the  Island,  and  then  made 
fast  at  about  six  o'clock  in  the  -evening,  and  that  very  night  she 
met  her  fate,  by  going  down  in  a  blaze  over  the  cataract  of  Ni- 


agara. 


If  Captain  Stocking  witnessed  that  boat,  it  could  have  been  at  no 
other  time  than  the  29th  ;  if  in  company  with  Press,  it  could  only 
have  been  the  29th. 

Now,  I  ask  you,  gentlemen  of  the  jury,  whether  there  can  be  any 
mistake  as  to  the  time  when  Mr.  Press  bore  McLeod  to  Stamford  1 
This  is  the  starting  point.  Here  we  stand  firm  and  unshaken.  Here 
is  the  anchor  of  hope  to  which  we  will  cling ;  and  I  challenge  the 
learned  counsel  on  the  other  side  to  make  this  matter  swing  from 
the  firm  bearing  that  we  have  thus  established. 

Press  leaves  McLeod  at  Stamford.  Where  do  we  find  him  then  1 
At  Mr.  Morrison's.  But  the  public  papers  have  assailed  the  char- 
acter of  this  family.  I  am  happy  to  learn  from  Doctor  Hamilton  of 
Niagara,  that  there  is  not  a  family  of  higher  respectability  in  the 
vicinity.  It  is  a  family  which  has  not  escaped  affliction,  and  has  felt 
deep  grief;  but  I  have  yet  to  learn,  that  it  has  shaken  confidence  in 
that  family,  or  furnished  proper  occasion  for  the  learned  Attorney 
General  to  tear  open  the  wounds  which  are  scarcely  cicatrized,  by 
an  examination  of  any  member  of  the  family. 

Now,  does  that  family  stand  confirmed  in  any  way  further  1  We 
have  brought  the  deposition  of  Col.  Cameron,  and  when  objected 
to  by  ofllicers  of  the  government  who  conduct  this  prosecution,  it 
did  excite  my  surprise.  I  will  not,  however,  repeat  the  sentiment 
I  entertained,  nor  give  further  vent  to  the  feelings  which  I  suffered. 
Truth,  justice  —neither  of  them  required  that  that  deposition  should 
be  excluded. 

36 


(  I 


4  t " 


888 


goucd's  reporter. 


It  was  taken  in  presence  of  counsel  on  both  sides.  Col.  Came- 
ron is  a  gentleman  of  high  respectability,  living  at  Toronto.  He 
says  he  was  at  Chippewa  when  the  Caroline  was  destroyed  ;  that 
he  left  in  the  morning  ;  that  on  his  way  he  called  at  Captain  Mor- 
rison's gate,  and  held  some  conversation  ;  he  does  not  remember 
the  substance  of  the  conversation ;  but  it  proves  another  fact  ;  that 
the  news  of  the  destruction  of  the  Caroline  must  have  been  carried 
that  morning  and  no  other  morning. 

Was  he  mistaken  when  he  tells  you  that  it  was  on  the  morning 
after  that  memorable  night  !  Was  he  mistaken  when  he  tells  you 
that  on  his  way  down  the  river  he  procured  a  trophy,  and  delivered 
a  part  of  that  trophy  to  Captain  Morrison  1  Was  that  a  matter  of 
mistake  1  No,  never.  It  is  confirmation  strong  as  holy  writ.  All 
point  to  the  hour,  and  that  hour  alone  which  is  material  for  the 
safety  of  McLeod. 

But,  gentlemen,  this  is  not  all.  Miss  Harriet  Morrison,  when 
asked,  where  next  did  you  see  McLeod  1  says,  "I  saw  him  in  the 
afternoon  of  the  same  day,  passing  by.  Making  a  pause  in  front 
of  the  house,  he  exhibited  a  cannon  ball,  which  I  understood  to 
have  been  fired  from  the  Island."  Does  she  stand  confirmed  1  Let 
us  examine  and  see. 

Young  Gilkinson,  an  oflicer  in  the  British  service,  says,  that  on 
the  night  of  the  29th  of  December  he  slept  at  Stamford  ;  that  the 
next  morning,  on  his  way  to  Chippewa,  befell  in  company  with  Mc- 
Leod. They  were  both  on  horseback  ;  that,  without  dismounting 
at  Chippewa,  he  and  McLeod  rode  up  the  Niagara  river;  and  the 
batteries  on  the  Island  were  opened  upon  them.  A  cannon  shot 
fell  a  little  short  of  them,  and  one  of  the  soldiers  picked  it  up  and 
handed  it  to  McLeod,  as  a  memorial  of  the  movements  upon  the  Can- 
adian frontier.  Does  not  that  go  to  confirm  what  has  been  said  by 
Captain  Sears'?  He  says  that  he  saw  him  come  there  in  company 
with  another  man,  and  that  they  were  fired  on  either  in  their  as- 
cent or  descent.  This  leads  me  next  to  consider  the  evidence  of 
the  family  of  Captain  Morrison.  McLeod  took  tea  there,  and  spent 
the  night  there  ;  remained  there  until  morning  and  took  breakfast 
there ;  so  says  Mrs.  Morrison  ;  so  says  Archibald  Morrison  ;  so 
says  Harriet ;  so  say  all. 

If,  after  all  this,  you  can  doubt  where  McLeod  was  not,  and 
where  he  was  ;  I  ask  where  you  find  a  foundation  for  that  doubt  1 
It  is  so  strong  and  so  overwhelming,  that  it  sets  argument  at  defi- 
ance ;  and  the  case  will  set  argument  at  defiance  to  effect  its  over- 
throw— it  is  right ;  it  is  true  ;  and  no  man  can  doubt  it.  But  there 
is  another  point  of  no  little  moment,  fixing  the  time,  and  proving 
that  McLeod  was  not  at  Chippewa.  I  have  already  alluded  to  the 
testimony  of  Gilkinson.  I  say  he  was  away,  when  they  say  he 
was  there.  Is  it  likely  that  McLeod  would  go  to  Stamford  and  re- 
turn back  at  that  hour  in  the  morning  1  Gilkinson's  testimony  is 
important,  as  it  proves  the  truth  of  what  is  testified  by  the  Morri- 
son family. 

Here  is  a  gentleman  in  our  own  State,  Judge  McLean,  who  slept 
at  the  quarters  if  Col.  McNab,  at  Chippewa,  on  the  night  of  the 


Col.  Cnme- 
ronto.  He 
oyed  ;  that 
uptaiii  Mor- 
remember 
r  fact ;  that 
leen  carried 

he  morning 
he  tells  yon 
id  delivered 
a  matter  of 
y  writ.  All 
erial  for  the 

rison,  when 
V  him  in  the 
ise  in  front 
derstood  to 
rmed  1    Let 

lays,  that  on 
d  ;  that  the 
lywith  Mc- 
ismounting 
r;  and  the 
cannon  shot 
ed  it  up  and 
pon  the  Can- 
seen  said  by 
in  company 
in  their  as- 
evidence  of 
■e,  and  spent 
ok  breakfast 
orrison  ;  so 

as  not,  and 
that  doubt  1 
lent  at  defl- 
ect its  over- 
But  there 
ind  proving 
luded  to  the 
hey  say  he 
ford  and  re- 
;estimony  is 
f  the  Morri- 

I,  who  slept 
light  of  thu 


MCLEOD  S    TRIAL. 


2S3 


•2nth  December,  and  conversed  with  him  in  the  evening,  though  we 
were  not  pcrmittpd  tu  show  what  the  subject  of  this  conversation 
was  ;  but  this  much  wc  have  a  right  to  show  that,  during  the  evening 
and  morning.  Judge  McLean  did  not  see  McLeod  at  Chippewa,  al- 
though he  had  seen  him  at  Bulfalo,  on  the  ikh  December,  and  put 
forth  his  hand  to  shield  him  from  the  violence  of  a  ruthless  mob. 

It  was  natural  that  he  should  have  inquired  for  him.  If  he  had 
been  at  Chippewa,  would  he  not  have  inquired*  him  out  and  seen 
him  I 

Judge  McLean  tells  you  that  after  breakfast,  between  nine  and 
ten  o'clock,  he  left  Chippewa  for  Niagara  Falls,  and  on  his  way,  in 
company  with  Doctor  Foote,  he  met  McLeod,  and  knew  him.  If 
this  be  so,  it  is  in  conformity  with  the  tale  told  by  the  family  of  Cap- 
tain Morrison. 

Would  not  Judge  McLean  be  as  likely  to  know  as  any  of  the 
witnesses  that  the  government  Jias  brought  here  to  uphold  this  prose- 
cution '.  A  man  who  knew  him  well,  and  not  shrouded  in  darkness — 
would  he  not  have  seen  him  if  he  had  been  there  at  the  dawn  of 
day,  or  at  sunrise — or  later  in  the  morning,  before  McLean  left  the 
village,  as  well  as  those  witnesses.  Smith,  Corson,  and  others  '. 

I  think  you  believe  with  me,  that  he*  would  have  been  far  more 
likely  to  have  seen  him,  having  inquired  for  him,  and  being  de- 
spatched there  by  the  District  Attorney  of  the  United  States,  to 
consult  with  McNab.  Would  he  not  have  been  likely  to  find 
McLeod,  if  he  had  been  there  1  Not  having  done  so,  proves  that 
McLeod  was  not  in  Chippewa;  and  havincf  met  him  at  or  near  the 
Falls,  riding  toward  Chippewa,  puts  it  beyond  all  doubt. 

If  McLeod  is  unable  to  defend  himself  on  alibi,  I  despair  of  de- 
fence. If  necessary  to  prove  him  at  Chippewa,  as  was  urged  by 
my  eloquent  young  friend,  instead  of  his  being  at  Stamford,  it  would 
have  crushed  us  to  the  earth.  Had  he  been  accused  of  a  murder 
perpetrated  at  Stamford  on  that  fatal  night,  it  would  have  been  im- 
possible for  us  to  prove  an  alibi  with  all  this  crowd  of  witnesses  to 
swear,  that  at  midnight  they  saw  him  at  Chippewa — some  of  them 
within  ten  feet,  others,  at  cock-crowing  in  the  morning,  saw  him 
somewhere  else  ;  «nd  when  daylight  had  streaked  in  the  east,  he  was 
in  a  different  place. 

Could  they  stand  up  against  the  overwhelming  testimony  of 
the  Morrisons  and  those  who  corroborate  their  statements  ?  The 
evidence  showing  where  he  slept,  where  he  remained,  and  where 
he  might  have  perpetrated  the  crime,  if  he  had  conceived  it  in  his 
heart,  cannot  be  destroyed  by  that  which  attempts  to  prove  him 
at  Chippewa ;  and  I  need  not  add  one  further  consideration  to 
what  I  have  already  stated,  because  the  strength  of  our  defence 
is  so  overwhelming  that  there  is  nothing  of  the  prosecution 
left.  It  is  enough  ;  there  is  no  cause  of  doubt.  It  is  enough  that 
the  doubts  and  probabilities  are  on  the  other  side.  Juries  are 
usually  reminded,  that  where  a  doubt  exists,  the  prisoner  should 
have  the  advantage  of  that  doubt ;  but  I  will  make  no  such 
appeal  to  you,  for  the  evidence  shows  that,  so  far  from  having  par- 
ticipated in  the  destruction  of  the  Caroline,  he  is  as  free  from  it  as 


i^ 


'lMl!,..i     . 


M 


,.#.^' 


i 

t 

1 

1 

1 

284 


G0ULD*8   REPORTER. 


you,  or  the  learned  counsel  for  the  prosecution,  or  those  who  have 
conducted  his  defence. 

Having  taxed  your  patience  beyond  endurance,  in  discharge  of 
the  last  duty  which  devolved  upun  me,  I  commit  him  to  youi 
charge  ;  and  if  I  have  not  deceived  myself  as  to  the  duty  which 
still  remains  for  you,  it  will  be  as  pleasant  to  you,  as  it  will  be  pro- 
pitious to  our  country. 


^ 


MCLEOD  S   TRIAL. 


•:sj 


m 


MR.    JENKINS     ADDRESS    TO    THE    JURY. 


May  it  please  the  Court, 

Gentlemen  of  the  Jury — Owin{j  to  the  great  variety  of  suhjcrls 
which  the  learned  counsel  for  the  prisoner  have  scon  proper  Jo  dis- 
I'ourse  upon,  the  remarks  wlfich  I  may  make,  may  be  regarded  as 
scarcely  at»  answer  to  tiiem.  I  had  supposed  when  we  appear  in 
courts  of  justice,  it  was  to  try  causes  upon  the  facts  established,  not 
upon  extraneous  circumstances  which  do  not  pertain  to  the  case.  It 
is  utterly  impossible  tliat  a  court  or  jury  shall  understand  the  cause, 
and  be  able  to  decide  it,  urdess  they  arrive  at  the  facts  through  the  me- 
dium of  legal  evidence.  Much  that  has  been  said  by  the  prisoner's 
counsel  is  addressed  to  men  in  England,  not  to  Americans  ;  to  those 
who  will  not  decide  the  issue  in  (juestion  ;  not  to  this  Court  and  this 
jury.  I  concede  that  it  is  proper  to  look  at  the  position  of  the  two 
countries — to  the  position  of  Canada,  and  of  the  insurgents  upon  Navy 
Island,  and  in  our  own  country,  for  the  purpose  of  ascertaining  the  po- 
sition of  those  concerned.  But  when  wo  go  beyond  that,  we  have  ex- 
ceeded the  bounds  of  our  duty.  • 

What,  I  would  ask,  was  the  situation  of  the  two  countries  at  that 
time  ?  We  all  know  that  Canada  had  been  afHicted  with  ruptures 
within  its  borders.  We  know  that  some  of  her  inhabitants,  consider- 
ing themselves  aggrieved,  had  been  judged  guilty  of  a  violation  of  the 
law ;  and  they  had  been  punished  with  death.  The  state  of  New 
York,  and  others,  deeply  sympathised  with  those  who  had  been  ar- 
rested. Was  it  not  to  be  expected  that  there  should  be  people  in 
(Janada  desirous  and  anxious  to  press  forward  and  accomplish  a  revo- 
lution— that  some  individuals  in  the  United  States  should  synipathise 
and  unite  with  them  in  accomplishing  their  design  ?  Is  it  not  matter 
of  surprise  that  from  a  republic  containing  17,000,000  of  people,  only 
some  two  or  three  hundred  should  have  been  found  congregated  at 
Navy  Island  ?  If  there  were  no  more,  it  is  a  cause  of  reproach  to 
the  British  nation,  that  a  handful  of  insurgents  should  agitate  and 
alarm  the  whole  empire. 

The  facts  upon  this  trial  show  that  this  is  a  peace-loving  community, 
having  no  disposition  to  disturb  their  neighbors.  There  arc  individ- 
uals here,  as  in  other  countries,  who  will  sometimes  unite  with  others 
in  waging  a  fruitless  war.  When  this  nation  was  sympathising  with 
the  sufferers  at  the  North,  and  those.who  had  created  the  disturbances 
in  Canada  were  desirous  of  establishing  there,  a  government  like  our 
own,  is  it  not  surprising  that,  among  this  immense  population,  so  few 
hundreds  should  be  ready  to  join  in  the  combat?  Prior  to  the  burn- 
ing of  the  Caroline,  and  the  commission  of  the  murder  in  question, 
little  excitement  existed  in  the  United  States  relative  to  the  northern 
difficulties.  It  is  true  that  a  man  by  the  name  of  Van  Rensselaer  was 
on  the  island,  and  had  command  of  a  few  men  whom  he  had  gathered 
there.  It  is  said  they  were  there  for  the  purpose  of  invading  the  Ca- 
nadian mainland.  What  had  they  to  expect  when  a  large  British  ar- 
my was  assembled  in  their  immediate  neighborhood,  and  only  some 
two  or  three  hundred  upon  the  island  ?     They  could  not  expect  to 


<   • 


;  '* 


i 

•i  ' 

1 

3 

t 

v 

.1. 

1 

286 


OO0LD's    REI'OUTER. 


maintain  thoir  position  t'or  a  moment.  They  could  do  l)iit  little  mis- 
chivf,  and  tliiTfCoro  no  extraordinary  incasurcH  on  ilie  part  oi'CJovern- 
inciit  \v(M-e  ciillcd  for.  In  a  sinj^Ie  hour  the  Finirlish  army  could  have 
made  ihcir  way  across  the  river,  and  captured  every  insurifenl. 

'I'his  is  pressed  into  the  snl)ject,  as  thouirh  the  Oanadas  were  in 
danjjcr  o(  hnw^  rcvolutioni/od  !  To  show  that  the  ('anudlan  authori- 
ties were  authorized  to  make  extra  exertions  to  destroy  this  boat,  then 
doatinjr  ill  Atneriean  waters,  the  forces  of  tlie  insurirents  aremairnified 
from  a  handful  of  men  to  an  immense  army,  and  this  litth;  ferry-boat 
has  grown  into  a  vast  en!i;ine  of  war.  The  only  purpose  for  whirli 
this  subject  is  pnisscd  into  this  trial  is,  to  form  som(!  sort  of  apolojiy 
thereby,  for  the  destruction  of  that  vessel.  The  Supreme  (Jourt  have 
decided  that,  for  any  purpose  of  justification,  the  warlike  movements 
on  Navy  Island  are  to  be  laid  out  of  the  case. 

The  vessel  was  seen  at  some  two  or  three  o'clock  in  the  af:ernoon 
of  the  tiOth  Pecember,  'IH,  plying  between  Navy  Island  and  Schlosser. 
Who  saw  her?  Alexander  McLeod.  To  determine  whether  the 
prisoner  was  there,  it  is  proper  for  us  to  ascertain  the  bias  which  he 
had  previously  entertained  on  this  subject.  For  if  he  were  opposed 
in  principle  to  the  destruction  of  the  boat,  more  proof  would  be  re- 
(|uired  to  establish  the  fact^hat  he  was  in  the  expedition,  than  if  he 
entertained  the  opposite  opinion.  Establish  the  bias,  and  the  man  \s 
not  far  distant.  I  therefore  ask  your  attention  to  the  position  of  the 
prisoner  at  the  time.  He  says  in  his  confession  that  the  Governor  of 
Canada  had  requested  him  to  go  to  BuiTalo  and  ascertain  whether  she 
was  to  be  sent  down  to  Navy  Island.  The  consummation  of  that 
mission,  which  took  place  on  Christmas  eve,  IK}?,  in  the  city  of  Buf- 
falo, it  appears  from  Capt.  Appleby's  testimony,  was  effected  under 
strange  circumstances.  Such  was  the  tumult  which  he  excited,  that 
he  required  the  aid  of  Appleby  and  McLean,  to  escape,  and  he  fled 
from  the  house-top.  How  he  got  away,  not  being  a  witness,  I  am 
.not  at  liberty  to  state.  On  the  day  following  he  returned  to  Chippe- 
wa, and  gave  intelligence  of  what  he  expected  would  occur,  and  made 
affidavits  to  the  facts.  What  does  he  do  next  .'  He  says  in  his  con- 
fession, that  on  the  evening  of  the  38th  he  was  about  to  go  to  Niagara, 
the  place  of  his  residence,  and  had  advanced  as  far  as  the  falls  of  Ni- 
agara, and  there  received  information  that  the  Caroline  had  left,  or 
was  about  to  leave,  for  Navy  Island.  That  he  returned  and  informed 
WcNab  that  she  was  about  to  come  down.  Did  not  that  man  feel 
some  interest  in  the  transaction  ?  Was  he  not  essentially  in  the  em- 
ploy of  the  Government?  Surely  he  was  a  spy.  And  most  admira- 
bly did  he  perform  his  duty.  What  next?  On  the  morning  of  the 
29th  he,  with  some  others,  went  into  a  boat  and  passed  round  Navy 
Island,  for  the  purpose  of  reconnoitering.  I  would  ask,  had  he  not 
some  motive  in  view?  Surely  it  must  be  so.  He  felt  extreme  anxi- 
ety to  know  when  she  would  arrive — and  for  what  purpose  ?  To  de- 
stroy her  the  moment  he  could  have  an  opportunity  to  do  so.  Why 
was  the  prisoner  at  the  bar  spending  his  time  at  Chippewa  ?  For 
what  purpose? — was  this  his  residence?  No,  it  was  not  for  ordi- 
nary business  that  he  remained  there.  Had  he  any  such  business 
that  appears  in  evidence  before  us  here?  For  what  purpose,  then, 
was  he  renftining  at  this  place  ?     It  was  for  the  purpose  of  carrying 


MCLEOD'S   TRIAL. 


287 


little  mis- 
()i'(i<)vrrn- 
noultl  have 
iTcnt. 

as  were  in 
tin  aulhori- 
i  boat,  tlicii 
nmai^nirinl 
!  ferry-l)oal 
[!  fur  whifli 
of  apology 
(3o»irt  have 
movements 

IP  afternoon 
il  Sclilosser. 
ivhether  tin- 
as  which  he 
ere  opposed 
ould   be  re- 
,  than  if  he 
I  the  man  i:^ 
lition   of  the 
Governor  of 
whether  she 
tion   of  that 
city  of  Buf- 
fectetl  under 
5xcited,   that 
,  and  he  fled 
itness,  I    am 
d  to  Chippc- 
iir,  and  made 
in  his   con- 
)  to  Niagara, 
falls   of  Ni- 
had    left,    or 
md  informed 
lat   man  feel 
y  in  the  em- 
rjiost  admira- 
rning  of  the 
roimd  Navy 
,  had  he  not 
xtreme  anxi- 
)se?     To  de- 
so.     Why 
pewa  ?     For 
lot  for  ordi- 
iich  business 
urpose,  then, 
of  carrying 


the  project  of  destruction  into  execution.  Had  she  been  found  at 
Navy  Island,  it  would  have  been  a  diiiereiit  (juestion.  He  kwv.w  that 
she  was  plylnfr  between  that  island  and  Srhloss(T.  He  saw  her  cross 
to  the  island  twice  and  back,  and  at  ni^rht  sin;  let  ufl*  steam  and  laid  up 
l)y  the  American  shore.  Now,  I  ask  you,  where  is  McLeod  when 
the  boat  is  safely  moored  at  Schlosser  I  He  had  been  round  the 
island  in  the  moriiintr,  and  a  number  of  witnesses  have  spoken  of  the 
fact  that  the  boat  was  there  laid  uj)  at  the  dock.  Now,  would  you  not 
naturally  expect  when  a  man  was  so  anxious  as  Ik;  was  to  accomplish 
the  mischief — the  man  who  hud  been  a  s])y  at  Ihitfalo — who  had  ukkIc 
alfitlavit — who  had  returned  from  the  Pavilion  at  the  falls — who  saw 
her  passing  back  and  forth,  in  full  view — who  was  found  in  private 
consnltaiion  with  the  commanding  olliccr  of  the  expedition  ?  ^See 
how  faithfully  the  bent  of  his  inclinations  tallys  with  the  fact! 

Corson  swears  that  on  the  afternoon  of  the  2\hh,  he  was  in  the 
store  of  Mecklin.  That  the  prisoner  Ca/it.  Drew  and  others  were 
there.  They  were  not  sitting  in  the  business  part  of  the  store,  but  in 
the  back  part,  surrouiid<!d  with  glasses,  as  if  to  take  something  to 
bring  their  spirits  up  to  the  nefarious  deed.  Not  a  word  has  been 
oflcred  to  show  that  he  was  not  there  in  that  consultation.  When 
witfiess  went  into  the  store,  though  fretjuently  there,  and  from  a  house 
trading  much  there,  yet  he  was  requested  to  go  out  of  the  store,  by 
the  clerk,  who  says  they  have  some  private  business  on  hand.  During 
these  few  fatal  hours  that  the  prisoner  was  there,  the  plan  was  ma 
tured  to  destroy  the  Caroline  that  night. 

The  keeper  of  the  hotel,  Mr.  Davis,  testifu's  that,  in  the  afternoon, 
some  two  or  three  o'clock,  the  prisoner  came  to  his  house  and  desired 
to  go  to  bed ;  that  he  did  go  to  bed,  and  slept  till  between  seven  and 
nine  o'clock.  The  prisoner  in  his  own  declaration  or  confession 
which  we  have  heard,  says  that  he  thus  went  to  bed  and  slept  till  about 
seven  o'clock.  Now,  if  he  had  been  then  concocting  this  plan,  would 
he  not  desire  to  obtain  some  rest,  and  thus  prepare  hi  nself  for  the 
conflict?  Having  regaled  himself  upon  the  wine,  it  ■..'^:'  to  be  ex- 
pected that  he  would  take  a  bed,  knowing  that  this  wou  !  be  a  night 
expedition,  in  which  there  would  not  be  much  opportunity  afforded  to 
obtain  rest.  He  did  so,  and  there  remained  until  h's  energies  were 
recruited.  Thus  far  we  have  not  gone  upon  disputed  ground.  But 
we  have  shown  what  his  feelings  were — what  his  inclinations,  and 
what  the  service  in  which  he  was  engaged.  Is  it  probable  that  he, 
knowing  that  the  Caroline  was  there,  and  being  thus  anxious — is  it 
probable  that  he  would  go  to  Niagara,  when  she  was  in  reach,  and 
her  destruction  was  contrived,  counselled  and  resolved  upon  ?  That 
is  not  to  be  supposed.  Now,  if  he  had  been  averse  to  any  sucli 
movement  or  procedure,  it  would  afford  evidence  in  his  favor.  But 
even  Morrison  says  that  when  he  first  heard  of  it,  he  exclaimed,  "  I 
wish  to  God  I  had  been  there."  This  goes  to  show  that  he  was  fa- 
vorable to  tlie  transaction,  and  that  he  was  the  last  man  to  have  quit- 
ted the  ground,  after  the  arrival  of  the  Caroline,  until  she  was  des- 
troyed. I  have  thus  established  this  one  thing,  that  the  inclination  of 
the  prisoner  was  to  be  engaged  in  that  transaction,  and  by  the  sleep, 
which  he  had  taken,  that  he  was  prepared  for  active  employment  in 
the  affair. 


' 


it' 


f 


Hi: 


./** 
■* 


CJ88 


(JOULD  H  REPORTER. 


Now,  let  UH  HOP,  Avhnt  that  an'air  was.  I  do  nssiire  yoii  that  thti 
learned  counsel,  willi  llieir  iii^MinuUy,  liiivo  not  ^iveii  to  ii  its  iialiiiul 
anil  due  course.  I  am  sulislied  that  you  have  tell  it;  that  every  iiiiiii 
who  has  Ik  urd  the  counsel  lias  lelt  it.  What  is  the  evidence.'  On 
th(!5ii)lli  Dcecinher,  the  iruard  on  hoard  the  steamboat  Caroline,  ascer- 
tained that  hoats  were  a|)|jroaehin}r.  One  of  the  iruard  went  to  the 
cabin  and  called  to  the  Captain  to  inform  him  of  the  fact.  The  Cit])- 
tain  did  not  suppose  tliat  there  would  bo  any  dilliculty,  and  the  ^uard 
went  atraiii  and  f^ave  tlu!  alarm,  ind  the  transaction  occurred  which 
has  been  minutely  detailed  to  you  by  the  witnesses.  The  p(Msons  on 
board  were  alarmed  ;  they  fearcfd  that  their  lives  were  to  be  taken, 
and  piirceivinj^  how  others  were;  surroumled  by  the  assailants,  tliev 
used  all  the  means  in  their  ;)ow(  r  to  make  their  escape,  and  did  not 
observe  with  as  much  minuteness  as  tlnsy  otherwise  would  have  done. 

I  notice  one  single  one  of  them:  Caj)tain  Appleby  had  seen   the 
prisimer  but  a  lew  days  before  ;  that  is,  on  the  iJ4th,  the  prisoner  i)e- 
ing  iu  dilliculty  at  tlie  time,  and  desirous  of  making  his  escape  from 
nullalo,  fixes  his  attention  upon  him,  so  that  he  knew  and  recognized 
l)is  countenance,      lie  had  been  at  the  cabin  door  once,  but  turned 
back  ;  but  he  again  \vent  to  the  door,  and  Just  as  he  opened  it  about  a 
foot,  a  person  I'rom  without  wrenched  it  open  and  a  sword  was  thrnst 
at  him,  which  cut  ofl'  a  button  of  his  vest,  and  was  warded  oif  by  a 
nietallic  button  on  his  pantaloons. .    It  was  but  an  instantaneous  sight 
or  view  that  he  had,  but  he  thought  tlien — and  thought  the  next  day — 
and  thinks  now,  that  tlu;  person  who  made  tlie  thrust  at  him,  was  Al- 
exander iMcLeod,  the  j)risoner  at  the  bar.     Upon  the  cross-examina- 
tion he  was  asked  "  will  you  swear  that  it  was  Alexander  McLeod"? 
All  that  he  could  say  was  to  repeat  what  he  had  already  said,  that  he 
then  believed  it — he  believed  it  the  next  day,  and  still  believes  that  it 
was  the  prisoner  at  the  bar.     Do  you  not  suppose  that  when  the  light 
was  shining  full  in  his  face,  he  would  be  likely  to  recollect  his  coun- 
tenance?    A  countenance  like  that  blazing  in  his  face — it  would  im- 
plant  an  image  never  to  be  efl'aced  from  his  memory.     Such  was  the 
impression,  and  he  will  never  forget  it  till  the  day  of  his  death.     Cap- 
tain Appleby  is  careful  in  his  manner  of  testifying,  but  his  impression 
is  that  that  was  the  man  who  made  the  thrust  at  him;  that  he  was  the 
man  at  the  door  of  the  cabin,  when  the  Captain  attempted  to  make 
his  escape.     The  learned  counsel  for  the  prisoner  says  that  all  this 
evidence  is  made  to  suit  the  case.     At  one  time  he  does  not  believe 
the  witnesses,  because  their  testimony  is  contradictory,  and   now  he 
does  not  believe  them  because  their  testimony  harmonizes.     I  agree 
with  him  that  truth  is  consistent  and  reasonable.     When  a  man  does 
tell   the  truth,  it  is  plain  on  its  face  that  it  is  the  truth.     When  a  man 
prevaricates,  and  tells  that  which  is  not  true,  you  see  at  once  that  it 
is  stamped  with  falsity.     You  give  it  no  credence,  but  say  that  it  is 
false  upon  its  face.     The  next  person  we  call  upon  is  Samuel  Drown, 
and  to  what  does  he  swear?     The  learned  counsel  here  went  on  to 
read  the  testimony  of  Samuel  Drown. 

It  is  well  to  stop  here  and  look  at  this  case.  What  were  the  oppor- 
tunities for  this  man  to  see  the  prisoner?  He  recollects  distinctly,  oi 
seeing  him  disembark.  He  heard  him  converse,  and  saw  him  there 
the  next  morning.     Though  he  did  not  stand  so  as  to  have  the  benelit 


Ik    •  ' 


MCLEOD  8  TRIAL. 


189 


u  that  ihr 
itrt  iiuluiiil 
cvory  iium 
oiuM- !     Oil 
line,  HHC(  r- 
n'\\t  to  the 
Till!  Ciil). 
il  llii;  iiiiiinl 
rit'd   which 
persons  on 
>  1)0   taken, 
lihinls,  tluty 
luul  (iiil  iiol 
1  li;ive  done. 
1(1  seen   tlie 
prisoner  he- 
csrape  IVoin 
I  retoguized 
,  hut  turned 
d  it  uhout  a 
il  was  thrnst 
ed  oU"  hy  ii 
uneous  sight 
i  next  day — 
liin,  was  Al- 
)ss-exaniina- 
r  MeLcod"f 
said,  that  he 
ievcs  that  it 
len  the  lif^ht 
!Ct  liirf  coun- 
would  ini- 
luch  was  the 
leath.     Oap- 
s  impression 
t  he  was  the 
ited  to  make 
that  all  this 
not  believe 
and  now  he 
es.     I  agree 
a  man  does 
When  a  man 
once  that  it 
ay  that  it  is 
muel  Drown, 
went  on  to 

re  the  oppor- 
dislinctly,  ol 
.w  him  there 
re  the  benelit 


of  the  light  direrlly,  yot  he  could  sec  the  form  of  the  face.  They  in- 
sist, on  the  part  of  the  prisoner,  that  this  man  is  impenclwd,  for  if 
they  did  not'  insist  on  that, — the  proof  of  one,  if  helit  ved,  in  as 
good  as  twenty.  Now,  1  ask  yon,  if  a  nnin  who  is  a  humhie  niun— a 
plain  farmer — appears  \ipiMi  the  stand  without  disguise,  and  seems 
willing  to  tell  his  simple  story,  they  call  upon  a  witness  to  impeach 
him,  and  to  whose  testimony  I  shall  nsk  your  attention,  they  call 
upon  a  respectable  man  living  in  the  vicinity,  and  what  does  he  sav  '. 
After  they  had  taken  him,  he  did  say  to  his  brother,  if  they  could  ilot 
get  a  bill  against  .McF^eod  without  his  testimony,  tlu-y  could  not  con- 
vict him  with  it.  This  witness,  Mr.  Hates,  says  thai  Drown  <Iid  say 
to  him  that  he  did  not  know  enough  to  rlo  McF^eod  any  good  or  Inirni. 

Whoever  has  been  in  the  habit  of  attending  {!ourls  and  consulting 
witnesses,  is  aware  that  they  will  often  say  "I  know  nothing  of  any 
conseijuencc."  It  is  a  common  remark  with  men  of  integrity  who  are 
willing  to  tell  the  truth.  Why,  the  thiht:  is  not  unconnnon.  There 
arc  men  so  ignorant  as  to  suppose  that  you  must  prove  not  only  that 
the  prisoner  was  on  the  ground  but  that  he  was  seen  giviuL'  'he  mortal 
wound.  This  man,  therefore,  made  use  of  the  remark  which  he  did, 
that  he  knew  but  little  about  it.  Now,  this  is  a  mighty  imp(;achment, 
for  which  a  man  has  come  all  the  way  from  Canandaigua  to  say — that 
Mr.  Drown  had  informed  him  in  this  way  as  to  his  evidence.  Now, 
1  aflk  if  this  is  the  impeachment  which  the  learned  counsel  has  magni- 
fied into  a  mountain,  and  for  which  he  says  the  witness  has  committed 
willful  perjury. 

Did  his  testimony  not  show  as  to  the  importance  of  it?  He  did  not 
detail  the  facts.  If  he  had  stated  things  difl'erently  from  what  he  has 
sworn  to,  then  we  might  well  say  that  he  had  sworn  falsely,  but  when 
one  witness  comes  in  to  contradict  another,  and  does  not  contradict  him, 
it  shows  that  they  have  attempted  to  make  an  impeachment  and  have 
not  succeeded.  But  what  does  Mr.  Bates  say  ?  He  says,  expressly, 
that  he  has  been  acquainted  with  Drown  for  many  years.  That  for- 
merly he  was  a  dissipated  man,  and  a  man  of  not  very  good  character  ; 
yet  before  he  went  to  Canada  he  had  reformed  ancl  had  never  since 
returned  to  his  evil  practices.  I  ask,  whether  a  man  thus  reformed, 
who  conducts  himself  and  pursues  a  wholesome  course  of  life  from 
year  to  year,  and  then  comes  into  a  Court  of  Justice — I  ask  whether 
the  opposite  party  should  travel  back  and  say  that  seven  or  ten  years 
ago  that  man  was  a  drunkard  ?  I  say  when  Mr.  Bates  came  forward 
and  testified  as  he  did,  it  added  to  the  character  of  the  witness  instead 
of  detracting  from  it.  He,  the  witness,  Drown,  said  he  did  not  know 
much  of  the  matter;  he  could  not  judge  of  its  immense  importance. 
It  was  a  mere  matter  of  opinion.  If  he  had  stated  the  facts  and  Mr. 
Bites  had  come  forward  and  stated  differently,  it  would  have  been  an 
impeachment.  This  is  all  that  I  consider  necessary  to  say  of  Drown, 
for  the  gentlemen  have  made  use  of  many  remarks  respecting  this 
witness  which  I  deem  unworthy  of  an  answer.  But  thus  far  I  did  think 
worthy  of  being  noticed.  The  counsel  for  the  prisoner  say  that  all 
are  combined,  and  come  here  with  a  determination  to  sustain  one 
another.  Has  not  the  learned  gentleman  drawn  very  largely  upon  his 
fancy  to  induce  the  jury  to  believe  transactions  which  have  never  ex- 
isted.    It  is  true  the  argument  was  more  like  evidence  than  argument ; 

37 


!!•■ 


iif..,  j 


;.i 


:rUi 


r' 


[■ 


'.>Miu< 


'if 


ono 


OOUr.D  tf    nEl'OHTF.K. 


more  than  ntio  linlf  (»f  it  rrlntrd  to  ihnt  wliirh  did  not  cxiHt  in  tl\o  cnsr. 
Stril^f  ont  timt  whicli  (Idch  not  pcrtiiin  to  t'lo  vhhc  and  wciirli  tin-  rv- 
iii:iiiidiT  ill  the  hcuIoh  of  iiitcllcrt,  and  Hcoifit  is  cntillcd  to  iiiiicli  con- 
sidrration. 

I  iiiiofit  lis  wfdl  h'TP  reitiark  tlint  llic  lour  ^vltncs^rs  wliorn  we  lir«l 
called  to  the  Htaiid  prrtaiiiiiisf  to  this  sulijcct  I  i<'<rai(l  as  tlic  most  im- 
portant— as  the  alliiiiportant  ones  I'tir  ni»}iol(iiii<r  this  prosc-rution. 
'I'Ik!  next  witness  is  Isaar  P.  C!orsnii,  1  luiow  yon  recollect  him.  Me 
has  been  an  inhabitant  ot'  Canada  hut  is  now  an  inhahilani  (»f  this 
stati'.  Me  does  not  live  far  di;  tant  from  the  scene  of  this  disirraeefid 
afliiir ;  and  if  his  character  for  truth  was  not  irood,  remember,  the  vi- 
ffilnnce  of  the  contisel  for  the  prisoner  would  have  sonijht  out  t!u»sc 
wlio  would  attempt  to  impeach  his  reputation.  Not  havinj;  done  so  I 
set  it  down  tlial  his  characltr  is  <jood,  that  he  is  \mimpeachahle  in  the 
iici{;hl)orhood  where  he  lives,  and  that  he  is  not  liable  to  have  odiuni 
east  iipcm  him  here.  You  are  to  judtic  from  the  facts  which  he  testi- 
fies to,  liie  appearance  of  th(!  man,  as  I  apprehend,  would  give  confi- 
denre  in  his  intefrrity,  and  yet  the  learned  coimael, — and  it  was  j)ar- 
ticularly  manifest  as  to  Mr.  ('orson, — fctund  fiult  with  his  manner  and 
tone  of  voice.  And  iri  every  thinji  that  pertained  to  his  modo  of  cross 
examination  seomod  to  say,  ".you  have  sworn  to  n  lie,  and  1  mean  to 
have  the  facts  out  of  you."  The  learned  counsel  has  brow-beat  the 
witnesses,  and  i)ut  their  characters  in  as  great  hazard  as  were  the  lives 
of  those  who  were  in  the  Caroline.  I  .sup|)ose  that  in  any  coimry, 
whether  Niairara  or  any  other,  where  counsel's  put  questions  in  the 
manner  that  ihey  have  done  in  this  case,  making  insinuations,  sneer- 
ing continually  during  the  examination,  there  is  no  witnesses  who 
would  not  feel  indignant.  I  do  not  cast  reproach.  1  make  these  re- 
marks to  show  the  impropriety  of  going  over  the  whole  life  of  a  wit- 
ness, and  asking  questions  which  would  put  any  man  at  a  loss  to  an- 
swer. Well,  what  was  the  result  of  it?  It  was  a  short  story  which 
will  carry  belief  with  the  proof  as  long  as  they  shall  recollect.  The 
Avitncss  stated  that  he  heard  McLeod  say,  that  he  was  there,  and  that 
"  he  would  like  just  such  another  expedition,  to  go  and  cut  out,  and 
burn  Buffalo." 

On  the  24th  McLeod  had  been  at  Buffalo,  he  had  noticed  him  to 
leave  the  city  in  a  manner  very  disagreeable  to  his  feelings,  and  no 
wonder  that  he  should  have  feelings  of  indignation  against  that  city. 
He  said  he  would  like  to  serve  ButTalo  as  he  had  served  the  Caroline. 
He  admitted  that  he  had  assisted  in  the  destruction  of  that  boat.  It 
was  only  necessary  to  show  that  these  sentiments  were  uttered  over 
and  over  again,  so  that  there  could  be  no  mistake.  I  do  not  wonder 
that  this  man  has  made  these  confessions.  But  you  should  consider 
where  he  was  when  he  made  them.  It  was  to  those  who  were  enga- 
ged in  this  cause.  It  shows  that  he  was  proud  of  having  done  that 
which  he  may  have  thought  his  duty  to  his  country  :  being  at  the 
head  and  almost  the  first  upon  the  boat  in  performing  that  act  of  which 
the  people  of  this  country  have  a  right  to  complain.  I  ask  you  then 
why  not  believe  the  testimony  of  this  man  in  connection  with  that  of 
a  dozen  others  when  these  men  come  forward  and  swear  to  that  which 
is  corroborated  by  circumstances  before  and  since  ?  A  jury  would  be 
extremely  direlict  from  duty  if  they  did  not  place  reliance  upon  it. 


Mri.KOD  H  rniAT., 


C'^l 


in  llio  cnsr. 
iirh   the  rr- 

)  IMUcll  I'Oll- 

loni  \vc  Hrsl 
ic  ninsl  uv- 
[)ri)M(!ruliftii. 
•t  liiin.     He 
l;iiil.  (if  tJiir. 
1  disKriicfftil 
nbcr,  llio  vi- 
It   ()>lt    tho!**' 
nj;  (lone  so  I 
•lial)lo  \n  the 
I  liavr  odiuKi 
lich  h(i  tosti- 
il  givr  conl'i- 
l  it  wnfl  jHir- 
I  miinncr  and 
node  of  cross 
nd  1  mean  tn 
irow-bcat  Uic 
vcrc  the  lives 
any  counry, 
istions  in  tlir 
ations,  sneci- 
imcpscs  who 
aUc  these  re- 
life  of  a  wit- 
t  a  loss  to  nn- 
t  story  which 
collect.     The 
lerc,  and  that 
I  cut  out,  and 

)ticcd  him  to 
infifs,  and  no 
inst  that  city, 
the  Caroline, 
that  boat.     It 
!  uttered  over 
o  not  wonder 
ould  consider 
\o  were  enga- 
mff  done  that 
being  at  the 
it  act  of  which 
ask  you  then 
I  with  that  of 
to  that  which 
jury  would  be 
isince  npon  it. 


Will  ,)  jury  nil  lierc  aufi  listen  to  nil  this  nlioiit  (•(•nil»iiiali(.iis  ?  Shall 
(•.)Uii-i'|  ask  a  jirry  I'l  Itrlirvr  ilicir  ou  ii  xiatcninii.^  ami  call  w  itneH«(■^ 
t'»  iii\|)('acli  ruiil  Ki't  down  oilier  \vitin'-Hi  s  as  mil  to  he  rreditt'd,  at  \\i 
Imve  wilut'-^Hed  on  thin  oivaKion  '.  1 1  |lial  is  lo  \w  ihv  ruHP,  ihe  sooner 
<f»Hrls  Mve  iloio'  auvy  with  tlir  Ixlti  r  In  (fad  of  hi  iiiir  a  trial  upon 
the  eviilciice  it  is  tlir  on  rc'l  larci'.  Voij  are  to  \vei'_»li  the  I'orce  ot 
pvidence.  It  is  not  only  >  our  rinlil  Imt  it  is  yon;'  duly,  lint  wlun 
yon  have  weiuhed  it  yioi  are  not  to  eon-ider  the  witness  ini|>e,i,  !ici!. 
liU'rely  Iteeanse  eoiitiMl  have  naid  so.  Sni>|»o<f  that  witness  had  a|i- 
pearrd  in  Court  williont  any  sneii  stvoiiir  ri'inarks  from  the  oppo/tite 
roiins(d,  wotild  yon  hesitate  to  l»elie\e  hiio  '.  No,  ihal  never  would  he 
t!ie  ease.  Atiy  man  who  has  heard  fiioi  luid  wilnesstd  his  inielliireine 
as  detailed  here  upon  oath,  in  tlie  prc'^ence  of  lliiH  Ctmrt  and  ot'  hi 
Maker,  would  place  relianec  upon  the  cvidinre  of  that  man  wiiho'il 
stint  or  allowance. 

The  Court  here  adjourned  for  one  hour. 


Evening  Session. 
Mr.  Jenkins  resumed  his  Addre.^s. 

At  the  time  of  the  adjournment,  gentlemen,  I  had  proceeded  in  the 
course  of  my  argument  to  show  the  force  of  the  evidence  of  Apple- 
by, of  Drown,  and  of  (.'orson,  and  to  show  that  the  [)risoiier  was  pres- 
ent upon  the  fatal  night  of  the  burning  of  the  Carolitie.  I  lv»d  name! 
the  name  of  Parke,  but  it  may  not  be  well  to  embarrass  the  mind  with 
too  much  evidence  at  onee.  It  may  he  proper  at  this  lime,  liavinp 
had  a  short  adjournment,  to  consider  the  groimd  on  which  we  are 
treading,  and  to  rellect  whether  ve  liave  not  a  case  here  upon  which  a 
jury  should  consider.  Was  it  ingenuous,  when  the  people  had  called 
witnesses,  for  the  counsel  to  intimate  that  the  prosecution  should  dis- 
continue the  case  on  the  ground  that  there  was  not  snflieient  evidence 
to  convict  the  prisoner?  Was  it  ingentiotis  ?  I  do  not  claim  that  it 
was  dishonest ;  but  have  not  counsel  been  carried  beyond  their  case 
by  means  of  their  anxietv  to  clear  the  ])risoner?  Is  it  not  necessary 
and  proper  that  we  should  pause  and  give  that  weiglit  to  the  testimi)ny 
to  which  it  is  entitled. 

I  feel  that  I  am  slandinir  before  a  tribunal  who  are  able  and  willing 
to  examine  this  case  upon  the  principles  of  law  ani  justice.  Although 
I  admit  I  have  been  disappointed  in  some  decisions  which  liavc  been 
made,  I  do  not  doubt  that  they  have  been  made  honestly,  tliough  pos- 
sibly made  mistakenly.  I  am  willing  to  rely  upon  the  evidence  before 
you,  without  regard  to  what  may  have  been  excluded.  I  am  willing 
to  place  the  case  before  you  on  that  evidence,  and  have  yoti  pronounce 
guilty  or  not  guilty. 

When  I  heard  it  announced  by  the  learned  counsel  in  presence  of 
this  audience,  and  the  Court,  thnt  they  expected  a  jury  to  bring  in  a 
verdict  without  the  least  possible  question,  and  that  they  only  fell  em- 
barrassed "because  they  had  nothing  to  argue,  because  the  case  was  so 
clear,  that  your  verdict  would  put  an  end  to  the  subject  of  war — when 


.1 


/ 


000 


Gould's  reporter. 


1  heard  that  subject  drawn  into  this  trial,  I  felt  alarmed  for  our  insti- 
tutions. 

Shall  it  be  said  that,  when  men  stand  up  to  argue  upon  the  guilt  or 
innocence  of  an  individual,  they  should  take  into  consideration  whe- 
tiier  it  shall  produce  war  or  continue  peace?  I  trust  that  no  such  sen- 
finicnt  has  ever  been  before  announced  in  this  land.  If  advocating 
this  case  before  a  British  court  and  a  British  jury  during  the  period  of 
IH;J7,  then  I  misrht  suppose  that  an  appeal  of  this  kind  might  have 
had  some  influence  in  inducing  a  jury  to  be  led  astray  by  their  preju- 
dices. But  when  addressing  a  jury  in  the  county  of  Oneida,  the  ))lace 
of  my  adoption — when  addressing  many  of  my  personal  acquaintance, 
I  am  satisfied  there  are  no  such  prejudices  to  gratify, — that  you  are 
willing  to  pronounce  upon  the  question,  whether  guilty  or  not  guilty. 
1  feel  a  confidence  which  inspires  me  with  courage  sufficient  to  pro- 
duce conviction,  and  inspire  a  belief  that  you  will  give  an  honest  decis- 
ion fearless  of  all  consequences. 

If  we  are  to  consider  whether  it  is  to  produce  consequences  beyond 
the  immediate  effect  of  your  verdict,  where  are  our  courts  and  our  in- 
stitutions ?  It  would  seem  as  if  the  learned  gentlemen  had  supposed 
tliemselves  in  another  nation.  I  awoke  almost  as  if  from  a  reverie, 
ill  a  country  under  Great  Britain  ;  not  the  island  of  England,  because 
there  is  as  much  justice  as  any  where.  They  would  look  with 
contempt  upon  any  such  insinuation  being  thrown  out.  Where  such 
arguments  are  introduced  into  courts,  and  before  a  jury,  shall  they  be 
listened  to?  Can  we  not,  I  ask,  bring  up  feelings  of  justice  more 
strong  and  powerful  than  any  extraneous  matter  which  pertains  to 
policy  or  expediency?  I  am  astonished  that  these  allusions  have 
been  made  and  held  out  to  you,  that  your  verdict  is  to  make  war  or 
peace,  and  therefore  you  must  ease  your  consciences  by  coming  for- 
ward and  pronouncing  a  verdict  without  considering  the  evidence, 
and  thus  lean  to  the  side  of  peace. 

Gentlemen,  this  is  not  the  way  in  which  we  are  to  view  this  ques- 
tion. If  we  look  to  the  history  of  our  country,  I  should  regard  it  as 
the  commencement  of  that  system,  which  if  persisted  in,  would  allow 
the  British  Government  to  take  away  our  soil  or  any  thing  else. 

How  was  the  right  of  search  exercised  previous  to  the  last  war  with 
England?  It  began  with  the  plausible  pretext  that  they  only  searched 
to  take  such  as  belonged  to  the  British  nation — under  that  pretext 
how  many  have  been  taken  from  their  families  and  homes,  and  never 
returned  to  their  native  land.  Sworn  away  by  false  witnesses,  and 
continued  away  till  their  deaths,  and  never  permitted  to  return.  If 
this  is  to  operate  with  the  jury,  and  our  laws  that  are  applicable  to 
subjects  of  another  nation,  who  commit  depredations,  how  soon  will 
the  people  upon  our  frontiers  be  snatched  out  of  our  hands,  and  lose 
their  lives  for  any  imaginary  offence.  I  say  therefore,  in  answer  to 
this,  that  it  is  our  duty — it  is  the  duty  of  the  Government  of  this 
State,  to  maintain  the  integrity  of  our  dominion. 

Let  it  be  understood  in  every  nation  and  kindred,  that  when  men 
are  within  the  ten'^orial  limits  of  New-York,  they  shall  be  protected 
and  their  lives  preserved.  They  shall  not  be  encroached  upon  by 
any  nation  whatever,  though  they  can  control  one  hundred  and  sixty 
millions  of  people,  while  we  have  but  fifteen  millions.     I  rose  with 


'm 


MCLKOD  8  XniAL. 


293 


r  our  insti- 

hc  guilt  or 
ation  whe- 
o  such  sen- 
advocating 
e  period  of 
might  have 
their  prejii- 
a,  the  place 
quaintance, 
lat  you  are 
not  guilty, 
ent  to  pro- 
onest  decis- 

ices  beyond 
and  our  in- 
ad  supposed 
m  a  reverie, 
ind,  because 
i\  look  with 
Where  such 
shall  they  be 
justice  more 
pertains  to 
usions  have 
lake  war  or 
coming  for- 
he  evidence, 

!W  this  ques- 

regard  it  as 

would  allow 

,g  else. 

last  war  with 

)nly  searched 

that  pretext 

IS,  and  never 

itnesses,  and 

J  return.     II' 

applicable  to 

ow  soon  will 

ads,  and  lose 

in  answer  to 

ment  of  this 

it  when  men 

be  protected 

hed  upon  by 

red  and  sixty 

I  rose  with 


thn  principh?  in  my  mind,  which  has  ever  been  inculcated,  that 
this  (juestioii  was  to  bo  decided  according  to  its  intrinsic  merits,  as 
developed  by  the  evidence. 

It  is  conceded,  that  if  Alexander  McLcod  was  on  board  those  boats, 
and  engaged  in  that  transaction,  he  is  guilty  of  the  crime  with  which 
he  stands  charged;  even  if  there  were  no  other  evidence  than  that  of 
the  three  to  whom  I  have  already  alluded,  together  with  the  fact  of 
the  death  of  the  deceased,  Durfee.  Would  any  jury  in  this  country, 
or  any  other  country,  hesitate  to  pronounce  that  man  guilty  ?  1  would 
be  astonished  if  they  would  do  so.  I  do  believe  that  any  jury  or 
court  would  yield  their  sanction,  and  their  credit,  and  their  faith,  and 
pronounce  the  prisoner  guilty,  without  the  least  delay.  But  we  do 
not  stop  here :  we  go  further,  and  introduce  witnesses  in  corrobora- 
tion of  these  facts  ;  and  the  only  attack  which  can  be  made  upon  thern 
is,  that  they  so  completely  corrcsjiond  in  their  testimony,  with  the 
facts  charged,  that  it  must  be  false  or  fabricated.  A  doctrine  as  strange 
as  it  is  new,  in  any  court  of  justice. 

Charles  Parke  is  a  native  of  Canada,  and  never  belonged  out  of  the 
Province,  as  is  the  case  with  several  of  our  witnesses.  lie  never  be- 
li>nged  to  any  of  the  societies  which  have  been  mentioned.  Is  it  pos- 
sible that  a  society  so  saps  the  moral;?  of  men  as  to  render  them  en- 
tirely unworthy  of  belief  {  If  that  be  so,  we  have  got  into  a  new 
sphere  of  action  in  relation  to  the  administration  of  the  laws  of  the  land. 

The  witness  yet  resides  in  Canada,  he  is  a  farmer — a  man  well 
known  there.  He  set  out  for  the  purpose  of  coming  to  Buffalo,  about 
the  time  of  the  commencement  of  this  court,  and  ascertaining  that  the 
trial  was  about  to  come  on,  though  he  had  business  in  Buffalo,  he  con- 
cluded to  return  home,  and  wait  till  the  trial  was  over.  He  is  not  one 
of  those  who  might  be  liable  to  the  charge  of  want  of  integrity.  He 
resided  in  the  very  village  and  house  where  Davis  did. 

The  vigilance  of  the  learned  counsel,  through  the  particular  friends 
of  the  prisoner  himself,  and  the  whole  British  Government,  would 
surely  have  been  able  to  produce  those  men,  or  to  have  taken  their 
testimony  on  commission,  who  could  impeach  this  witness,  if  he  was 
in  truth  liable  to  impeachment.  He  came  to  Chippewa,  and  there  as- 
certaining the  fact,  of  the  trial  being  about  to  take  place,  and  being 
unwilling  to  come,  returned  to  his  home.  The  first  week  of  the  court 
having  passed  over,  he  again  went  to  Buffalo,  to  attend  to  his  business. 
He  was  discovered  in  Chippewa  by  a  person  who  crossed  the  Niagara, 
and  who,  taking  a  different  route,  was  ready  as  soon  as  the  witness 
rose  from  his  bed  the  uext  morning  to  subpoena  him  to  appear  in  this 
case. 

Now,  the  learned  counsel  says  this  was  all  a  trick  on  his  part.  I 
ask  where  ii  the  evidence  of  it?  Is  there  the  least  evidence  of  the 
fact  ?  If  so,  I  have  failed  to  hear  it.  He  did  not  know  the  eflect  of  a 
subpoena,  other  than  it  laid  him  under  a  penalty  of  fifty  dollars,  and  he 
concluded  to  send  his  horses  back  by  his  brother-in-law,  and  come  to 
court.  And  this  is  made  a  subject  of  impeachment,  as  though  what 
he  has  said  under  the  sanction  of  an  oath  is  nothi.ig  worth.  I  never 
have  seen  counsel  driven  to  such  extremities.  His  whole  story  is, 
from  the  beginning  to  the  end  of  it,  a  continued  chain  of  transactions 
bearing  the  impress  of  consistency. 


M 


>'fi 


•294. 


ooiild's   REF0RT£R. 


Lft  the  (Tentleiimn's  arirnrnpnt  l)e  published,  as  it  will  be  published, 
iind  1  am  glad  that  an  ar<fiinuint  of  that  descrijjtion  is  to  be  |)ub!ishcd  ; 
so  that  if  a  jury  brings  in  a  verdict  in  conformity  with  it,  that  this  en- 
liEfhtened  community  may  sec  and  know  how  it  has  been  accomplish- 
ed. But  if  the  solemnity  and  sanction  of  an  oath — if  duty  to  his 
countrv,  to  himself,  and  to  his  Maker — if  the  ordinary  laws  of  our 
country  are  to  have  their  wonted  course,  I  shall  be  proud  of  submit- 
tinfr  the  question  to  you,  whether  Parke  is  to  be  believed  or  not. 
What  does  he  testify  ?  I  shall  only  give  an  extract :  He  says  that  he 
was  Davis'  bar-keeper,  that  McLeod  directed  him  to  tell  his  brother 
that  he  was  gone  to  Niagara.  Now,  what  was  that  done  for?  Was 
it  not  known  to  him  that  Corson  and  others  lu  .1  seen  him  in  conver- 
sation with  Drew  ?  That  it  was  whispered  in  the  public  mind  that 
the  Caroline — the  thing  which  had  occupied  so  much  of  his  attention, 
and  which  had  caused  him  to  go  to  Buffalo — to  go  round  Navy  Island 
— to  return  from  the  falls  the  night  previous, — that  something  was  to 
l)e  acconiplislied  ?  For  the  purpose  of  not  allowing  them  to  know  of 
liis  actions,  he  designed  to  put  them  otf  their  guard,  by  saying,  bring 
up  my  horse.  I  ain  going  to  Niagara.  Who  brought  up  his  horse  ? 
He  did  not  bring  him  up  himself.  Now,  if  there  was  a  man  who 
l>rought  out  his  horse,  do  you  not  suppose  his  testimony  would  be 
brought  to  bear  upon  this  trial,  personally  or  by  deposition?  Ye«, 
he  would  have  been  the  first  man. 

Here  Mr.  Jenkins  recapitulated  the  substance  of  Parke's  testimony, 
bearing  upon  this  point,  and  then  proceeded  as  foUoAvs : 

Whenever  you  find  two  witnessfs  essentially  corroborating  each 
other's  testimony,  and  establishing  the  same  fact,  and  there  is  no  in- 
herent evidence  of  its  untruth,  it  gives  to  it  a  force  in  arithmetical 
progression  ;  if  you  add  a  third  it  is  stronger,  if  a  fourth,  it  contin- 
ues to  increase  in  strength. 

Novv%  the  force  of  this  testimony,  all  tending  to  one  point,  is 
stronger  and  of  higher  verity  than  if  sworn  to  by  one  only. 

Henry  Alcj'^ers,  of  Canandaigua,  swears  that  he  saw  McLeod  at  the 
falls  of  Niagara,  where  he  stopped  at  a  house  on  the  north  side  of  the 
road.  He  had  previously  seen  him  at  St.  Davids;  someone  asked 
him  who  shot  Durfee  ?  McLeod  said,  "By  God,  I  am  the  man." 
He  then  sai;!,  "  That  is  the  pistol  that  shot  him,"  Now,  how  do  they 
seek  to  impeach  this  witness  ?  He  is  made  to  go  the  grand  round,  to 
ahovr  where  he  was  born,  and  where  he  has  lived.  I  would  not  have 
said  a  word,  if  the  learned  counsel  had  not  recommended  you  to  look 
and  see  whether  the  witness  had  pursued  the  most  direct  route  to  get 
K)  the  several  places  named.  I  have  no  olijections  to  your  looking  at 
tlie  map,  but  those  who  are  better  acciuainted  thari  my  learned  friend 
or  myself  with  the  points  at  which  he  arrived,  say  that  the  route  was 
the  most  direct  that  he  could  have  pursued,  except  where  he  varied  it 
in  order  to  get  better  sleighing.  And  think  you, — when  that  learned 
irentlemen  is  surrounded  by  many  high  in  station  from  Canada, — 
think  you  they  would  not  be  called  on  to  testify  and  show  the  falsity 
of  this  evidence  in  that  respect? 

Gentlemen,  I  am  astonished  that  my  learned  friend  should  have 
gone  so  far  beyond  his  ordinary  prudence — but  he  cannot  blind  men, 
with  things  so  feeble  and  futile,  upon  their  face. 


■'•fKrt, 


Mcleod's  trial. 


295 


published, 
[)ul)lislicd  ; 
ut  this  cn- 
['coniplish- 
iiity  to  his 
ivvs  of  our 
of  submit- 
ved  or  not. 
lys  that  ho 
lis  brother 
for?     Was 
in   conver- 
;  mind  that 
3  attention, 
avy  Island 
ing  was  to 
to  know  of 
ying,  brin<r 
liis  horse  f 
%  man  who 
r  would  be 
ion?     Ye", 

testimony, 

•ating  each 

!  is  no   in- 

trithmetical 

it  contin- 

e  point,   is 

iCod  at  the 
side  of  the 
one  asked 
the  man." 
lovv  do  they 
d  round,  to 
lid  not  have 
you  to  look 
route  to  get 
•looking  at 
rned  friend 

route  was 
he  varied  it 
;hat  learned 

Canada, — 
the   falsity 

hould  have 
blind  men, 


I        ! 


I  do  not  contend  that  this  man  has  as  niucli  weight  of  character  as 
more  substantial  men,  who  live  in  one  place  and  are  not  moving 
about,  yet  he  is  not  unworthy  of  credit,  thoy  have  not  impeached  him 
at  all ;  nor  is  his  story  in)j)robablc.  For  the  whole  course  of  pro- 
ceedings, from  first  to  last,  show  that  McLeod  had  been  willing  to 
boast,  that  his  queen,  and  England  might  know  that  he  had  been  a  du- 
tiful subject.  It  has  been  said  tliat  the  declarations  of  men  arc  not  the 
ijcst  evidence.  It  is  not  like  that  of  a  man  who  sees  with  unerr>»ig 
certainty  ;  but  still  it  is  evidence  and  you  arc  bound  to  allow  it  some 
weight.  But  I  do  object  against  goinjr  out  of  the  record  to  impeach 
this  man,  for  1  verily  believe  he  has  told  the  truth,  as  nearly  as  he  was 
able  to  set  it  forth. 

The  witness  says,  that  McLeod  had  a  sword  and  a  pistol.  The 
stock  of  the  pistol  was  painted  red.  I  care  not  whether  it  was  or  not. 
Me  saw  it  and  it  was  stained,  no  doubt,  whether  with  the  blood  of 
Durfee,  or  of  any  body  else,  or  not  I)lood  at  all,  it  is  evident  that  the 
prisoner  Avished  to  hold  out  the  idea  that  ho  was  the  man  who  had 
committed  the  deed.  We  introduce  this  man,  for  the  purpose  of  show- 
ing that  McLeod  confessed  himself  to  be  on  this  excursion.  When 
we  have  taken  the  testimony  to  that  extent  it  has  performed  its  oflice. 

Gentlemen,  add  that  to  the  foundation  work,  which  has  been  erect- 
ed in  this  case,  and  let  the  learned  gentleman  produce  all  the  force  he 
can  against  it,  and  we  will  see  whether  he  has  been  able  to  raze  its 
foundation.  Calvin  Willson  was  acquainted  with  the  prisoner,  who 
in  reply  to  a  question  from  Raincock  said  there  was  one  thing  which 
he  did  know,  and  that  was,  that  one  damned  Yankee  got  shot  on  the 
wharf.  Now,  they  have  undertaken  an  impeachment  of  him  also  ;  and 
they  have  shown  by  Alexander  C  Hamilton,  a  lawyer  of  undoubted 
respectability,  that  Raincock  had  left  the  place  before  the  time  allud- 
ed to.  But  is  it  not  possible  that  he  had  gone  to  the  American  side 
and  was  back  there  on  that  occasion  I  Hamilton  swears  that  he  ran 
away  for  debt,  and  others  say  that  he  <lid  not  run  away  for  debt.  Now 
who  knows  but  he  resided  near  by  there  ?  It  is  a  fact  which  I  am 
ready  to  concede,  that  it  has  shaken  his  testimony  and  it  belongs  to 
you  to  say,  how  much  credit  it  is  entitled  to.  If  you  throw  it  alto- 
gether away  there  is  enough  left. 

Seth  Hinman  lives  in  Youngstown,  he  saw  McLeod  on  the  evening 
of  the  twenty-ninth,  and  at  seven  o'clock  the  next  morning ;  he  was 
once  in  a  Hunter's  Lodge.  He  has  no  doubt  that  he  saw  him  about 
sunrise.  This  does  not  prove  that  he  was  on  board  the  boats,  but  it 
goes  to  prove  that  what  they  setup,  in  defence,  is  groundless.  And  I 
shall  have  occasion  to  advert  to  the  circumstance  for  that  purpose — 
to  show  that  he  was  there  aboi  t  sunrise,  and  therefore  probably  one 
of  the  party.  I  ask  why  was  he  up  there  thus  early  in  the  morning  ? 
Is  it  improbable  that  he  should  be  up  thus  early  in  the  morning.  He 
had  taken  a  sound  nap  after  his  wine-drinking,  and  had  risen  in  the 
morning.  There  is  no  proof  that  he  was  there  positively.  The  offi- 
cers there  were  up  at  an  unusual  hour  in  the  morning,  which  shows  to 
my  mind  that  he  was  there  drinking  over  the  fatal  deed  which  he  had 
accomplished. 

William  W.  Caswell  saw  him  come  out  from   Davis's  about  nine 
o'clock  in  the  evening,  and  go  towards  Mecklem's  store,  where  the 


i   I 


M 


,,# 


y96 


GOULD'S    REPORTER. 


conHiiltation  had  been  held,  and  in  the  direction  of  the  embarkation. 
He  undoubtedly  went  there  for  the  purpose  of  embarking.  Witness 
saw  him  about  gun-rise  the  following  morning  on  Davis's  steps.  Priso- 
ner said  "  We  made  the  damned  Yankees  run."  Now,  do  you  not  be- 
lieve he  said  that  ?  Do  you  not  suppose,  if  you  had  been  in  Canada, 
a  citizen  of  the  United  States  and  looking  on  that  transaction,  he  be- 
ing a  deputy  shcrifl",  and  being  in  that  transaction  and  confessing  that 
he  did  a  certain  act,  do  you  not  believe  you  would  remember  the  sub- 
stance of  it  as  long  as  you  live?  It  was  not  like  the  every  day  oc- 
currences that  take  place  in  a  neighborhood  ;  here  was  an  important 
fact  divulged. 

When  a  man  comes  forward,  in  open  day-light,  and  makes  such 
statements;  how  could  an  American  drive  them  from  his  thoughts? 
They  will  be  with  him  to  the  latest  day  of  his  existence.  McLeod 
also  said  that  he  saw  one  man  dead  on  the  dock  ;  he  had  a  pistol  in 
his  hand  ;  now  I  ask  whether  this  will  not  convince  the  mind  of  any 
reasonable  man  that  McLcod  was  a  participator  in  that  affair. 

Anson  D.  Quinby  saw  the  prisoner  come  out  of  Davis's,  about  nine 
o'clock.  The  next  morning  he  saw  him  not  far  from  the  bridge,  and 
some  of  the  colored  troops  about  him.  Some  one  asked  how  they 
made  it  go  last  night.  The  answer  was,  "  we,"  or  "  I  killed  one  or 
two  damned  Yankees."  Do  you  suppose  that  he  had  forgotten  ?  I 
apprehend  the  jury  will  wait  long  before  they  forget  the  circumstance. 

Justus  F.  T.  Stevens  says  he  saw  the  boats  depart  and  return,  but 
upon  the  testimony  of  this  witness  very  little  reliance  was  placed. 

Timothy  Wheaton  is  less  explicit  than  the  others. 

We  have  called  no  less  than  twelve  witnesses,  all  showing  that  Mc- 
Leod was  there,  and  yet  the  learned  counsel  has  stood  up  here  and  pro- 
claimed to  this  Court,  and  audience,  that  it  was  the  duty  of  the  Attor- 
ney General  to  abandon  the  cause  !  But  for  my  personal  acquaint- 
ance with  the  learned  counsel  I  would  set  him  down  as  a  maniac.  I 
do  not  say  that  he  intended  to  misrepresent. 

Now  let  us  go  through  with  the  evidence  on  the  part  of  the  prison- 
er, and  see  how  far  that  changes  the  force  of  the  evidence  which  I 
have  recapitulated.  Perhaps  I  ought  to  remark,  before  proceeding 
that  it  has  been  said  by  the  distinguished  counsel  that  he  has  im- 
peached the  testimony  of  Anson  D.  Qninby. 

Well,  let  US  see  whether  he  has.  Did  you  ever  know  a  man  im- 
peached by  introducing  a  single  witness  against  him  ?  If  you  were 
going  to  impeach  a  man,  would  you  go  twenty-six  miles  from  the  re- 
sidence of  the  individual  to  get  a  lawyer  who  had  been  employed  for 
the  express  purpose  of  impeaching  him,  and  who  when  he  came  upon 
the  stand  did  not  impeach  him  at  all,  nor  attempt  it?  Would  you 
subpoena  that  man  and  rest  your  impeachment  upon  his  testimony  or 
even  upon  that  of  a  Justice  of  the  Peace  ?  When  it  appears  that  no  longer 
ago  than  a  few  weeks,  he  was  called  upon  the  stand  and  an  effort  was 
made  to  impeach  him  but  abandoned. 

The  learned  counsel  has  said  that  the  Post  Office  has  been  made 
use  of  improperly.  How  did  Mr.  Lott  of  Pennsylvania — this  Justice 
of  the  Peace,  of  no  politics,  do  ?  Did  he  not  communicate  through  the 
Post  Office,  and  was  not  intelligence  sent  to  the  counsel,  and  Mr. 
Lott  invited  here  through  that  channel  ?     And  that  is  the  man  who 


barkation. 
Witness 
ips.  Priso- 
ou  not  be- 
in  Canada, 
ion,  he  be- 
essing  that 
er  the  sub- 
•y  day  oc- 
imporlant 

lakes  such 
thoughts  ? 
,  McLeod 
a  pistol  in 
lind  of  any 
air. 

,  about  nine 
bridge,  and 
I  how  they 
illed  one  or 
rgotten  1  I 
rcumstance. 
return,  but 
I  placed. 

ng  that  Mc- 
ere  and  pro- 
)f  the  Attor- 
gil  acquaint- 
maniac.     I 

the  pris  on- 
ce which  I 
proceeding 
he  has  im- 

a  man  im- 
you  were 
from  the  re- 
tnployed  for 
came  upon 
Would  you 
stimony  or 
lat  no  longer 
n  effort  was 

been  made 
-this  Justice 

through  the 
el,  and  Mr. 
le  man  who 


MCLEOD  S   TRIAL. 


297 


conies  here  out  of  the  pure  love  of  justice,  all  the  way  from  Pennsyl- 
vania !  I  suspected  there  was  a  moving  cause,  planted  deeper  than 
we  can  see.  This  is  the  man  who  is  willing,  voluntarily,  to  commu- 
nicate intelligence,  through  the  mail,  for  the  purpose  of  getting  a 
chance  to  come  and  swear  on  this  trial.  Why,  gentlemen,  this  is  a 
novel  mode  of  impeachment ;  it  is  not  much  stronger  than  the  learned 
gentleman's  argument  without  any  proof,  and  not  half  so  amusing. 

Here  we  happen  to  come  upon  a  principle  of  law — if  a  man  goes 
into  a  neighborhood  for  the  purpose  of  inquiring  whether  the  charac- 
ter of  an  individual  is  good  or  bad,  and  inquires  of  A.  B.  C.  and  D. 
and  they  all  say  bad,  and  so  on  through  the  town,  and  this  man  comes 
forward  to  testify,  the  Court  will  say  "  you  are  not  a  competent  wit- 
ness." It  must  be  a  person  living  on  the  ground.  The  Court  are  fa- 
miliar with  the  doctrine. 

Therefore  the  intelligence  which  this  lawyer  obtained  is  wholly 
useless. 

It  was  not  to  be  expected  that  when  we  had  to  draw  intelligence 
from  the  other  side  of  the  fatal  Canadian  line,  that  the  principal  men 
would  come.  It  would  be  useless  to  go  there  to  take  depositions. 
You  might  be  sent  back  perhaps  with  a  bullet  in  your  head.  We 
can  not  expect  that  men  of  wealth  and  high  standing,  of  rank  and  dig- 
nity, can  be  brought  here  as  witnesses  ;  but  it  is  men  from  the  anvil 
and  the  plough,  only,  that  we  are  able  to  procure.  Shall  a  man's  in- 
tegrity be  weighed  by  the  weight  of  his  purse  ?  Is  it  not  believed  that 
the  laboring  classes  of  the  community  are  the  honest  ones,  rather  than 
those  who  are  engaged  in  speculations,  to  which  the  laboring  classes 
have  not  access.  Persons  who  labor  for  their  living  have  but  their 
character  to  bear  them  through  life  creditably.  These  men,  when 
unimpeached,  are  the  men  to  be  believed ;  when  you  undertake  to 
impeach  a  man  whose  character  is  not  good,  how  much  easier  is  it  to 
take  a  poor  man  than  a  rich  one.  Take  a  rich  man,  and  the  first  thing 
is,  I  know  that  man  can  injure  me,  possessing  as  he  does,  property 
and  power.  But  take  a  man  who  is  penniless,  having  nothing  but  the 
hands  with  which  he  gets  a  living,  and  how  easy  it  is  for  wealth  and 
affluence  and  power,  backed  up,  as  on  the  present  occasion,  by  the 
British  Government,  by  able  counsel,  to  crush  the  poor  man !  I  ask 
you  not  to  shut  your  minds  against  the  poor  man.  I  apprehend  that 
when  they  come  to  get  through  with  it,  the  gentleman's  charges 
against  the  Attorney  General  will  show  to  this  country,  to  England, 
and  to  the  world,  that  this  prosecution  is  brought  in  good  faith,  and 
carried  through  in  good  faith. 

We  now  come  to  the  prisoner's  defence  ;  and  there  is  one  circum- 
stance which  the  jurors  should  have  in  their  minds,  as  much  as  the 
carpenter  his  square  and  compass.  It  is  that  when  a  person  testifies 
to  an  affirmative  fact,  his  testimony  is  stronger  than  that  of  the  wit- 
ness who  testifies  against  him.  If  I  should  see  a  person  in  this  audi- 
ence, and  it  should  become  important,  next  year,  or  the  year  after,  or 
five  years  hence,  to  prove  that  man  was  here,  and  I  should  be  called 
to  prove  it,  and  swear  that  I  saw  him  here,  that  I  recollect  the  fact  ; 
suppose,  then,  that  forty  others  should  be  called  on  to  say  whether 
they  saw  him,  and  they  should  say  that  they  saw  almost  every  other 
one,  but  did  not  see  him,  would  you  be  at  liberty  then  to  say  that  my 

38 


) 


i   I 


t  m' .i 


t  , ,  ^ 


^ 


K,,  t'i 


298 


GOULD  S    REPORTER. 


fpstimony  was  impeached,  although  they  could  say  that  they  knew  a 
•freat  many,  and  that  he  was  not  one  of  them  ?  Now,  I  want  to  know 
it"  that  contradicts  the  most  feeble  evidence  ?  Here,  then,  is  the  long 
and  short  of  the  argument;  and  of  this  character  is  the  testimony  o( 
Capt.  Sears.  This  man,  who  was  in  the  confidence  of  the  British 
Government,  a  sort  of  link  between  the  black  and  the  white  races, 
standing  where  the  complexions  meet  both  ways.  He  is  a  man  who 
appears  pretty  well,  and  has  a  reasonable  amount  of  intelligence. 
The  Attorney  General,  did  examine  him  more  severely  than  any  other, 
and  his  answers  did  appear  pretty  frank,  and  quite  intelligent;  but  if 
they  had  been  strictly  true,  they  would  have  had  more  weight.  He 
goes  too  far,  and  swears  that  they  were  all  in  darkness,  so  that  no  one 
could  sec  ;  he  says  it  was  very  dark.  He  was  asked  whether  he 
could  see  his  friends.  He  answers  yes,  and  there  were  five  of  these 
men  engaged  in  this  glorious  deed,  which  has  been  compared  to  the 
seizure  of  Yorktown.  But  he  cannot  name  the  persons  who  were 
engaged  in  this  black  deed  of  butchery,  and  he  had  reason,  I  suspect, 
for  not  doing  it.  He  says  that  he  was  in  Davis's  tavern  several  times 
in  the  course  of  the  night  ;  and  that  he  saw  Davis,  'and  conversed 
with  him.  Davis  swears  that  in  the  course  of  the  night  he  did  not 
see  him  at  all,  but  that  he  was  in  bed.  Now,  what  shall  we  say  to  the 
testimony  of  Capt.  Sears  ?  I  should  call  this  at  least  a  contradiction, 
which  detracts  from  the  force  and  power  of  his  evidence.  It  was  so 
dark  that  he  did  not  sec  Sir  Allan  McNab  ;  No  wonder,  then,  that 
.he  did  not  see  the  prisoner.  There  seemed  to  be  a  mysterious  power 
in  that  man ;  the  moment  he  turned  his  eye  toward  a  friend,  he  could 
see  him.  I  do  not  know  how  it  is  in  Canada,  but  in  this  country,  1 
should  doubt  very  much  if  this  peculiarity  exists.  He  was  about  the 
beacon-light,  but  did  not  see  McLeod,  although  it  is  possible  that 
McLeod  was  there.  He  was  asked,  did  you  see  Drew,  the  man  who 
commanded?  He  says,  yes,  I  saw  him.  Was  there  any  man  in  uni- 
form 1  No,  is  the  answer.  He  saw  Drew,  and  could  swear  that  the 
prisoner  was  not  there.  Another  witness  swears  that  Drew  was  the 
only  man  in  uniform,  on  that  occasion.  How  could  he  identify  his 
friends,  and  still  not  be  able  to  tell  whether  the  commander  was  in 
uniform  ?  Harris  swears  expressly  that  he  was  thus  dressed,  and 
that  he  was  the  only  one.  But  this  distinguished  Captain,  when 
brought  here,  says  that  when  the  boats  were  passing  up  and  down, 
no  one  was  permitted  to  pass  unless  they  gave  the  usual  signal  or 
countersign. 

Piatt  Smith  says  it  was  usual  to  pass  without  any  such  ceremony. 
When  that  witness  was  called,  he  said  he  passed  all  except  one. 
When  they  saw  that  they  were  people  who  lived  in  the  neighborhood, 
they  did  not  challenge  him. 

If  there  had  {."en  a  large  army  on  the  island,  it  might  have  been 
dift'erent.  But  here  was  an  army  of  two  or  three  thousand  men,  and 
only  two  or  three  hundred  upon  the  island,  whom  the  Canadians 
feared  no  more  than  they  would  so  many  persons  without  arms  at  all. 

But  we  have  direct  evidence  that  the  sentinels  were  in  the  habit  of 
challenging  persons  who  passed.  They  were  set  there  to  do  this  du- 
ty. And  unless  this  man  has  an  all-seeing  eye,  to  look  any  where, 
and  every  where,  his  testimony  amounts  to  little  or  nothing. 


ey  knew  a 
lilt  tu  know 
,  is  the  long 
Bstiinony  ol" 

the  British 
^hite  races, 
a  man  who 
ntclligcncc. 
n  any  other, 
^cnt ;  but  il' 
t'eight.  He 
that  no  one 

whether  he 
five  of  these 
pared  to  the 
5  who  were 
n,  I  suspect, 
everal  times 
1   conversed 
t  he  did  not 
ve  say  to  the 
jntradiction, 
It  was  so 
r,  then,  that 
!rious  power 
nd,  he  could 
is  country,  1 
'as  about  the 
30ssible  that 
,he  man  who 
•  man  in  imi- 
rear  that  the 
rew  was  the 

identify  his 
fider  was  in 
dressed,  and 
iptain,  when 

and   down, 
lal   signal  or 

h  ceremony. 
[  except  one. 
eighborhood, 

ht  have  been 
nd  men,  and 
>e  Canadians 
t  arms  at  all. 

the  habit  of 
,o  do  this  du- 

any  where, 

ling- 


moleod's  trial. 


SOO 


We  now  approach  a  more  important  jiart  of  the  prisonrr's  defence 
— the  depositions.  A  conirnission  is  made  up  here  at  home,  by  the 
icHpectable  counsel,  to  examine;  witnessed  in  behalf  of  the  prisoner. 
Ill  making  up  these  ciuestioiis,  the  counsel  on  the  j)urt  of  the  prisoner 
makes  out  the  ordinary  questions,  called  interrogatories;  and  the 
counsel  on  the  other  side  make  out  the  pri)por  cross-interrogatories  ; 
and  they  are  sent  to  Canada,  or  wherever  the  witness  resides,  and 
these  interrogatories  are  read  over,  and  the  ansu(!rs  of  the  witness 
taken  down.  Now,  you  perctiive,  yon  cannot  change  your  cross- 
questions  to  meet  any  other  thing  wiiicli  the  witness  holds  out,  l)»it 
have  to  examine  iiiin  on  the  old  (juestions.  Of  course  therefore  the 
witnesses  can  screen  themselves  from  saying  many  things,  tliat  the 
counsel  would  think  proper  to  in(juire  about,  were  the  witness  on  the 
stand.  Why,  suppose  tliat  the  learned  counsel  had  been  rc(iuired,  in 
any  manner,  to  draw  up  written  interrogatories  for  the  witnesses,  he 
has  examined — how  much  would  he  have  found  out  ?  Very  little. 
You  cannot  go  into  a  cross-examination,  where  depositions  are  taken, 
that  shall  elicit  important  facts,  many  of  which  would  otherwise  be 
l)rought  to  light.  I  grant  that  the  testimony,  on  the  part  of  the  party 
issuing  the  commissions,  may  not  be  as  forcible,  yet  the  cross-ques- 
tioning of  the  testimony  amounts  to  little  or  nothing.  In  these  com- 
missions, do  you  find  tlic  question  put,  who  were  on  board  these 
boats?  You  do  not.  If  the  witnesses  were  on  the  stand,  they  would 
have  to  answer,  who  were  there ;  tliis  matter  was  of  the  utmost  im- 
portance. Suppose  you  should  come  forward  in  a  court  of  justice, 
and  swear  that  you  did  not  see  the  Attorney  (ieneral  on  board  such  a 
boat,  that  night',  on  the  cross-examination,  yon  would  be  asked,  how 
many  were  there — who  were  there.  If  the  witness  could  give  in  the 
names  of  all  on  board  and  say  that  he  knew  them,  and  give  their 
number,  and  all  these  marks  which  make  the  truth,  what  would  be 
the  ell'ect  ?  To  carry  strength,  and  force,  with  sucli  answers.  Now 
what  is  done,  in  this  manner  of  testimony  ?  You  find  witness  after 
witness,  swearing  not  only  strongly,  but  positively,  that  the  prisoner 
was  not  on  board  the  boats,  at  all,  when  it  is  utterly  impossible,  posi- 
tively to  know  whether  McLeod  was  on  board  or  not — utterly  im- 
possible :  it  is  true,  they  might  know  he  was  not  on  board  the  boat 
where  they  were ;  but,  to  know  that  he  was  not  on  any  of  them,  is 
utterly  impossible. 

Mr.  Spencer  here  interrupted.  They  have  not  said  that ;  but 
the  witnesses  on  board  each  boat — have  declared  that  he  was  not  on 
board  the  boat  which  they  were  in. 

Mr.  Jenkins.  That  is  not  very  important;  if  they  desired  to  show 
with  certainty  that  the  prisoner  was  not  on  board  the  boat,  they  should 
have  asked  the  question,  themselves ;  it  would  brace  up  the  residue 
of  the  testimony  beyond  all  description  :  every  man  would  see  if  they 
knew  those  on  board  and  could  describe  them,  that  McLeod  was 
not  among  them ;  and  their  testimony  couhl  be  relied  on ;  but  let 
them  put  the  naked  question  only,  and  it  shows  that  these  persons 
could  not  be  satisfied  with  a  degree  of  certainty. 

Mr.  Spencer.  The  question  is  put  and  answered,  whether  they 
knew  every  man  on  board  the  boat. 

Mr.  Jenkins.     But  if  the  answer  was  made  that  they  knew  the 


lil 


.J 
t  i 


v.* 


1.4 

1 

300 


GOULD  8  REPORTER. 


l\ 


names  of  all  on  board,  would  it  not  add  to  the  testimony  ?  If  they 
could  say,  "  I  knew  all  on  board,  and  MeLcod  was  not  there," — docs 
it  not  atnonnt  to  nothinj?  at  last?  And,  I  will  show  you  that  these  re- 
marks are  strictly  applicable  to  the  position  I  am  al)out  to  take.  The 
learned  counsel  did  anticipate  me — in  sayinjf  that  it  would  be  iirged  by 
the  counsel  on  the  part  of  the  people,  that  the  parties  to  a  crime,  are 
not  such  as  can  be  relied  on  in  a  court  of  justice,  and  I  do  admit,  I 
was  pained  with  the  praise,  which  the  distin<>uished  counsel  thoucrht 
proper  to  attach  to  the  transaction  of  these  persons  in  this  dark  trage- 
dy. Will  the  persons  who  are  engaged  in  this  business,  be  left  to  the 
tender  mercies  of  those  who,  in  the  night  time,  invade  our  borders 
and  attack  in  this  manner  our  boats  ?  when  they  know  not  who  are  on 
board  how  many  private  citizens  -who  go  and  raise  a  gang  of  men, 
putting  into  their  hands  the  most  dangerous  weapons,  who  cry  out 
that  they  will  "  give  no  quarters,"  who  shot  one  man  on  the  spot,  and 
how  many  others  they  killed,  no  man  can  tell ;  and  after  they  had 
done  all  tnnt,  the  learned  counsel  compares  them  with  the  heroes  of 
the  American  Revolution.  This  is  elevating  them  to  a  position  to 
which  the  human  mind  can  never  give  its  assent !  Shall  those  who 
commit  an  act  of  which  they  are  ashamed,  be  thus  praised,  and  in  an 
American  Court?  It  is  to  me,  absolutely  and  exceedingly  unpleasant. 
Did  they  not  know  they  were  crossing  the  important  line  that  divides 
two  nations  jealous  of  each  other?  Did  they  know  when  they 
were  I'lbout  to  commit  this  murder,  how  many  fathers  they  would  ren- 
ner  childless,  and  how  many  wives  widows  ?  Not,  at  all :  and  yet 
they  were  willing  to  go  and  tire  indiscriminately  on  that  boat.  Now,  I 
say,  a  man  who  will  do  this,  is  as  hardened  a  villain,  as. ever  swung  on 
the  gallows ;  they  went  and  raised  the  murderous  knife  in  the  night- 
time, with  a  view  of  slaughtering  those  people  indiscriminately,  and 
without  any  cause  whatever  ;  and  yet,  it  is  claimed,  although  they 
possessed  feelings  thus  hardened  — it  is  said  by  the  learned  counsel  op- 
posite me,  that  you  are  to  believe  them,  as  much  as  though  they  had 
not  been  parties  to  the  crime  :  it  is  hard  work,  and  never,  in  this  coun- 
try or  in  England  where  common  sense  prevails,  can  it  be  assented  to. 
Depend  on  it,  the  man  who  has  participated  in  such  a  transaction,  has 
lost  his  moral  sense,  and  will  be  more  easily  swerved  from  the  truth, 
than  the  man  who  is  not  thus  stained  with  the  commission  of  an  evil 
deed:  and,  gentlemen,  I  would  prove  this,  in  the  very  witnesses  them- 
selves. The  law  on  this  subject  is  this — that  a  party  to  a  crime, 
although  he  turn  states-evidence,  cannot  alone  support  the  prosecution 
for  a  criminal  offence,  without  strong  corroborative  circumstances, 
for  the  purpose  of  enabling  a  court,  to  authorize  a  jury  to  bring  in  a 
%'erdict  of  "  guilty"  against  the  prisoner.  But  if  this  testimony  is  of 
itself  entitled  to  but  loose  credence,  witnesses  have  been  called 
against  them ;  and  I  therefore  insist  that  the  testimony  of  these  men 
should  be  looked  into  with  great  care,  whatever  it  might  amount  to, 
were  it  not  thus  circumstanced,  by  the  fact  of  their  connection  in  the 
guilt  of  the  prisoner.  I  will  take  one  example — and  that  is  the  boat 
in  which  the  commandant.  Drew  was  himself;  and  the  first  question  is 
this — it  appears  from  the  evidence  of  other  witnesses,  that  Drew  is  in 
Canada;  why  is  he  not  produced  here?  The  man  who  must  have  known 
McLeod  better  than  any  other  person — why  is  not  the  commandant 


f^ 


MCLEOD  8  TRIAL. 


301 


?     If  Ihcy 

"c," — (Iocs 
it  thcso  re- 
akc.  The 
le  urRCfl  by 
crime,  arc 
lo  admit,  I 
icl  thouirhl 
lark  traire- 
1  left  to  the 
ur  borders 
who  are  on 
ng  of  men, 
lo  cry  out 
e  spot,  and 
■  they  had 

heroes  of 
position  to 
those  who 
,  and  in  an 
impleasant. 
,hat  divides 
when    they 

would  ren- 
1 :    and  yet 
at.     Now,  I 
r  swung  on 
1  the  night- 
nately,  and 
liough  they 
counsel  op- 
gh  they  had 
n  this  coun- 
assented  to. 
saction,  has 
m  the  truth, 
n  of  an  evil 
esses  them- 
to  a  crime, 
prosecution 
cumstances, 
o  bring  in  a 
mony  is  of 
been  called 
f  these  men 
;  amount  to, 
iction  in  the 
t  is  the  boat 
t  question  is 
t  Drew  is  in 
have  known 
commandant 


of  the  boats  —the  man  too,  who  was  in  company  with  the  prisoner 
iliat  very  afternoon,  and  in  whose  boat  the  prisoner  would  be  likely 
to  enter  -why  is  he  not  on  the  stand,  and  recjiiired  to  testify?  In  this 
country  every  thing  was  at  the  command  of  tlie  prisoner,  and  |)ersons 
from  his  own  country  came  here  to  watch  the  trial ;  why  was  not  Drew 
authorized  in  that  way,  and  re(iucstcd  to  give  evideiico,  as  to  whether 
he  saw  the  prisoner  at  all  or  not  ?  Remember  that  the  prisoner,  un- 
der the  advice  of  his  able  counsel  hero,  and  perhaps  e(iually  able 
counsel  in  the  Provinces,  would  not  have  called  on  men  who  were 
able  to  swear  against  him.  Gentlemen,  depend  on  it  there  is  acute 
management  in  this  case  ;  that  they  have  not  called  on  him,  to  testify ; 
if  he  could  have  sworn  that  the  prisoner  was  not  there,  he  would  have 
been  the  first  man  pitched  upon,  and  would  have  been  called  as  a  wit- 
ness ;  but  he  was  not.     The  second  in  command,  Harris  — 

Mil.  Si'KNCER. — There  was  one  other  of  the  officers  of  the  navy, 
who  was  in  the  boat  together  with  Drew,  who  declined  to  testify,  for 
the  reason  that  he  would  not  give  any  countenance,  by  giving  testimo- 
ny, to  the  right  of  trial  before  the  courts  of  the  States. 

Mr.  Jknkins. — I  presume  the  counsel  has  been  so  informed,  and 
that  is  about  as  truexifl^that  the  priscMior  was  not  in  the  expedition, 
because  he  was  at  MH^sou's  ;  but  I  hope  the  learned  counsel  will  not 
always  be  deceived  with  pretences  so  slight  and  flimsy;  to  save  a 
man's  life,  it  is  true,  he  would  not  be  sworn — he  would  not  commit 
perjury,  and  therefore  was  not  sworn.  Who  have  they  sworn  out  of 
that  boat?  The  first  was  Harris,  who  was  second  in  command ;  he  says 
there  were  nine  in  the  boat  he  went  in.  Edward  Zealand,  who  was 
in  the  same  boat,  says  there  were  eight  in  it  ;  now,  where  is  the  odd 
man  ?  I  suspect  it  was  McLeod  ;  there  is  a  diflercnce  of  one  between 
them  ;  and  how  will  they  reconcile  it  ?  At  any  rate,  there  is  a  con- 
tradiction ;  and  where  is  the  odd  man  ?  If  they  can  swear  with  such 
certainty — one  swearing  that  there  were  nine,  and  another  that  there 
were  eight,  in  the  boat,  it  seems  to  me  that  it  goes  somewhat  to  in- 
validate the  force  of  their  evidence.  Put  that  in  connection  with  the 
fact  that  Drew  himself  would  not  swear,  and  let  us  see  whether,  as  an 
American  jury,  who  are  not  placed  below  mankind  in  general,  for 
knowledge  and  good  sense,  cannot  see  that  there  existed  a  conscious- 
ness that  McLeod  was  a  sharer  in  this  deed  of  violence.  Now,  Har- 
ris says  there  was  no  man  of  the  name  of  McLeod  in  the  expedition — 
he  knew  every  person — "  I  did  not  sec  every  person  who  embarked." 
"  On  their  return  home  they  went  to  their  respective  quarters  ;  I  had 
no  acquaintance  with  McLeod  ;  "I  believe  I  was  the  last  person  who 
left  her."  Zealand  says,  when  they  came  to  get  out,  he  jumped  in- 
to the  river ;  I  do  not  know  but  it  may  be  that  he,  and  the  prisoner, 
had  drank  deeper  than  they  should  have  done,  and  therefore  were  unable 
to  perform  their  fiendish  duty. 

Now,  we  come  to  the  point  raised  by  the  testimony  of  Center. 
He  swears  that  he  threw  a  couple  of  carcasses,  one  into  the  fore,  and 
one  into  the  after  cabin,  and  then  came  away.  I  should  like  to  know 
how  they  burned,  after  the  boat  and  he  himself  were  wet.  No  man 
pretends  that  this  Harris  ever  put  any  such  article  into  this  boat,  for 
the  purpose  of  firing  her ;  it  is  contradicted  by  the  other  facts 
sworn  to.     What  is  there  further  on  this  branch  of  the  case  ?     It  is 


t  . 


#J 


i'!\i*J 


K 


■K;;  -. 


:.,•  n  ■ 


ft? 


303 


OOVLD*8    nEPORTRR. 


perfectly  obvious,  that  when  yon  look  thronirh  the  evideijre,  niid  ox- 
iitniiic  it,  with  rcspcrt  to  thrse  coniinissioriH,  it  ariioiintH  at  Ix-st  t<>  very 
little.  It  would  luil  be  expected  that  they  would  be  eareCul  to  iioijre 
who  were  there  ;  piddy  and  excited  as  they  were.  If  a  list  hod  been 
made  (iftbosc?  who  were  there,  and  MeLeod's  name  had  been  on  it, 
they  would  have  been  the  last  to  j)ro(luee  it,  in  a  VAyc  of  life  nnd 
death.  No  sneh  list  wa.^  made.  The  people,  when  the  temper  of  iho 
times  has  cooled  down,  will  hold  up  the  ])erpetrntors  of  this  deed  to 
the  indignation  of  both  nations.  Yon  perceive  then,  that  the  evidence 
from  the  coinrnission,  and  that  of  Sears,  (h)es  m)t  amount  to  much. 

Now,  how  do  they  estal)lish  their  alibi  ?  On  this  poitit  of  the  rase, 
I  shall  not  detain  you  lon<r;  I  do  not  de6)n  it  necessary.  I  shall  leave 
much  pcrtaiiduff  to  this  case  to  your  own  recoli(!Ction,  and  to  the  re- 
mark.s  of  the  Attorney  General.  What  is  an  alibi?  It  is  to  prove  a 
man  to  be  in  another  place,  at  the  time  charged.  Have  you  not 
heard  the  learned  counsel  say  that  the  (juestioii  of  time  was  the  most 
difficult  of  all  thing^s  to  be  remendjered  I  So  it  is  ;  and  therefore  the 
defence  of  alibi  set  up  In  criminal  prosecutions,  is  such  as  almost 
always  is  looked  upon  with  susj)icion.  Why?  Because  the  qaestion 
of  time,  about  which  people  rflust  remend)er,  is  an  important  one. 
Now,  for  the  purjjosc  of  showing  that  we  cannot  rely  on  Morrison's 
evidence,  we  have  introduced  the  confession  of  Mcjiood,  to  ascertain 
a  fact  entirely  inconsistent  with  the  statement  of  the  Morrisons,  in 
which  McLeod  says  that  on  Christmas  eve,  the  5ilth  of  December,  he 
was  in  Buffalo,  and  the  Adlowing  day  he  returned  to  Chippewa,  and 
there  gave  the  intelligence  with  respect  to  the  (>aroline.  Now,  Mor- 
rison swore  with  ecpial  certainty  that  on  that  very  evening,  this  same 
McLeod  was  at  his  house,  and  staid  all  night. 

Mr.  Spencer.     N6 — but  on  Christmas  cr^cning. 

The  Attorney  General.  No,  Morrison  himself  corrected  the 
statement,  and  said  it  was  on  Christmas  eve;  the  Judge  will  find  it  so, 
b}^  reference  to  his  minutes. 

Mr.  Jenkins.  I  understand  it  so;  when  the  question  was  asked 
what  time  he  was  there,  he  said  Christmas  eve  ;  that  is  Avhat  T  under- 
stood him  to  say;  if  it  is  wrong,  you  will  correct  it.  If  so,  then,  of 
course,  the  witnesses  stand  contradicted  in  one  point,  foi  the  reason 
that  they  swore  that  they  remembered  as  distinctly  that  the  prisoner 
was  there  on  the  24th  of  December,  as  on  the  29th  :  what  is  their  recol- 
lection then  good  for?  It  is  good  for  nothing.  Inglis  in  his  deposi- 
tion, states  that  he  was  a  bar-keeper  in  Toronto — that  McLeod  came 
there  the  31st  of  Dec.  18137,  and  staid  there  three  days  ;  McLeod  says 
that  he  did  go  to  Toronto  on  the  1st  January,  1838,  and  the  next  day 
was  there ;  although  they  had  been  at  the  expense  of  examining  In- 
glis, his  testimony  was  not  read  at  all,  and  it  contradicted  that  of  the 
whole  Morrison  family,  with  respect  to  his  being  there,  the  1st  and 
2d  January,  1838.  The  depositions  of  these  Morrisons,  taken  on 
another  occasion,  have  been  read  to  you ;  what  do  they  say?  That 
McLeod  came  there  with  his  horse,  and  that  Morrison  directed  his 
son  to  put  up  the  horse  and  supper  it.  The  old  man  swears  he  knew 
nothing  about  the  horse  ;  his  wife  and  daughter  swear  that  they  knew 
nothing  at  all  about  the  horse,  except  from  the  boy  ;  what  has  produ- 
ced this  change?    They  would  rather  have  it  suspected  that  Morrison's 


\\\ 


J I  '" 


MCLEOD  H  XniAI. 


30N 


I  t 


re,  niul  px- 
icst  III  very 
I  to  iioiice 
t  liiul  l)ecn 
bct'ii  (111  it, 
of  lit'«!  nnil 
npcr  of  lli(! 
lis  (lord  to 
ic  evidence 
o  imich. 
f  the  case, 
Hliall  leave 
to  the    re- 
ti)  prove  11 
e    you  not 
18  the.  most 
icrefore  the 
:i  uH  almost 
he  qaestion 
riortant  one. 
Morrison's 
o  ascertain 
orrisons,  in 
•cember,  he 
ippcwa,  and 
Now,  Mor- 
s,  this  same 


irrected  the 
ill  find  it  so, 

n  was  asked 
lat  1  under- 
go, then,  of 
the  reason 
le  prisoner 
their  recol- 
his  deposi- 
cLcod  came 
IcLeod  says 
le  next  day 
amining  In- 
that  of  the 
the  1st  and 
taken  on 
say?     That 
directed  his 
ars  he  knew 
t  they  knew 
t  has  produ- 
;  Morrison's 


fumily  did  not  tell  the  truth,  than  that  MrLeod  wont  there  on  horse- 
back. Ill  liin  (lepositioii  he  says  that  he  went  on  lniis«'i>ack  liiinseil'; 
he  says,  "  I  j^ot  up  alioul  hall'  p;ist  seven  or  v\'^\\l  o'clock,  yjot  my 
horse,  uiiumlcd  him,  and  went  to  Staiil';ird  in  company  with  I'ress  *' 
(n  the  cvaininatioii  before  the  jinlije,  he  says  he  led  tli<' horse  and  rode 
ill  the  wa<;on  with  I'nss:  I'rci-is  says  he  lias  no  rccolleclioii  about  the 
horse.  Tiic  jrentleinan  says  he  reconciles  it  in  this  way — that  McljRod 
hitched  his  horse  bcliiiid  the  wajroii,  and  I'n'ss  never  found  it  out  at 
all;  is  that  possible?  Not  at  all;  if  they  were  b-itlicred  by  leaditij;- 
the  horse,  remember  that  the  feeble  recollection  of  Press,  who  i'l 
brouifht  here  to  j)rrss  every  thiiifr  into  service,  would  have  remember- 
ed it  as  long  as  the  fa<;l  of  Mclicod's  beiii'jf  with  him;  it  is  not  to  be 
forgotten  ;  but,  there  is  somelliing  more  improliable  than  that  with 
rcsjiect  to  this.  Press  is  brought  to  fortify  Morrison  ;  and  when  you 
come  to  ascertain  the  fact,  Press's  and  (jaswell's  testimony  goes  for  less 
than  nothing,  in  support  of  the  testimony  of  this  family.  That  it  is 
not  true  in  fact,  is  manifest.  Press  believes  he  went  down  to  Chippewa, 
and  at  tlie  door  of  Davis's  tavern  saw  the  prisoner ;  thinks  he  mentioned 
to  the  prisoner  that  he  was  in  a  hurry.  McTieod  had  a  horse  at  Da- 
vis's, and  still,  in  a  muddy  state  of  the  roads  and  darkness  of  night, 
liC  detains  Press  from  home,  and  takes  a  nap,  while  Press  is  wait- 
ing for  him;  it  will  do  to  tell  this  to  new  recruits,  but  not  to  us 
old  soldiers.  Do  you  suppose  he  got  Press  to  wait  for  him  to 
take  a  nap,  and  when  he  got  to  Morrison's,  he  was  so  sleepy  as 
to  t:ike  another?  It  is  preposterous;  men  of  sense  see  through 
the  llimsy  manocuvering  of  which  this  is  composed.  The  Mor- 
risons say  they  usually  go  to  bed  at  eight  or  nine  o'clock :  that 
night  they  were  up  till  twelve  o'clock  ;  the  old  man  remembers  one 
thing — that  McLeod  took  a  glass  of  sling  at  ten  o'clock,  but  what 
they  talked  about,  no  man  can  tell !  Why,  gentlemen,  it  will  not  do 
to  prove  an  alibi  by  sucli  evidence  as  that.  They  had  heard  that  the 
Caroline  was  there,  they  say,  before  that  time — 

Mr.  Si'KNCER  interrupted.  None  but  the  young  lady  entertained 
any  thought  of  the  Caroline's  coming  down,  before. 

Mr.  Jknkins.  My  recollection  is  as  I  have  stated  it;  you  will  re- 
member whether  it  is  true  or  not:  the  young  lady  says  that  in  the  af- 
ternoon of  the  30th,  McLeod  returned  to  Chippewa,  bringing  a  ball 
that  had  been  fired  at  him  from  Navy  Island  ;  is  it  to  be  credited  that 
any  man  would  carry  a  cannon  ball  in  his  hands,  for  the  purpose  of 
showing  it  to  the  young  ladies !  Gentlemen,  it  is  not  so.  A  little 
farther  back,  and  let  us  see  how  this  alibi  is  introduced.  The  Caro- 
oline  was  burned  on  the  29lh  of  December;  Cameron  is  shown  to 
have  been  along  there  early  in  the  morning ;  and  that  he  brought 
along  a  piece  of  this  ill-ftited  vessel — so  anxious  was  Cameron  to  keep 
a  piece  of  a  vessel  that  had  gone  over  the  falls :  that  might  all  have 
been ;  yet  it  was  quite  early  in  the  morning  that  Cameron  should  get 
hold  of  it;  it  is  not  very  probable  that  he  would  have  got  hold  of  it, 
and  taken  it  down  to  Morrison  so  early  in  the  morning.  If  Mor- 
rison had  sawed  off  a  piece,  Cameron  would  have  remembered 
the  special  anxiety  of  a  man  to  obtain  a  little  piece  of  wood  ; 
and  he  would  have  been  the  last  one  of  whom  they  would  have  for- 
gotten to  ask  this  question — what  does  he  say  ?     That  on  the  morn- 


! 


If' 


■t 


m 


U' 


304 


nOIILD  8    REPURTIR. 


injf  after  tlio  biirnirifr  of  the  ('nrolinn,  about  nine  o'clock,  ho  Miopprd 
lit  J<»lin  MorrJHoii'H  i;iit(>,  in  front  of  tht;  )iouHi!  ncur  Stanford,  and 
that  MorriHon  rainc  to  the  (rate  ;  "  1  thrn>  iiad  a  ('onvcrHalion  with  hint 
of  about  fivr  ritinutCH;  I  may  have  nH>ntion«!d  th(t  (h'Hlrnction  of  lht> 
Carolina  to  hiin  ;  I  now  ronuMnhcr  the  fact  of  having  h(dd  a  convcr- 
i^atioti  with  MorriHon  at  that  rniic."  Now,  if  that  nnin  had  taken  the 
[minri  to  Hccuro  such  an  article  as  thin,  and  the  «)ld  Holdier,  IMorri^ion, 
pleaHed  with  it,  had  thought  |)ro|)er  to  flaw  it  oil',  Cameron  could  have 
remembered  it.  I  ank  if  it  doen  not  look  an  if  thifl  alibi  wan  manu- 
factured? 1  rejjard  this  defence  as  made  up  for  the  occanion.  It  is 
posHiblo,  and  baridy  possible,  that  it  is  true ;  but  I  regard  it  as  made 
up  for  the  occasion  ;  and  all  the  circumstances,  to  which  I  have  allu- 
ded, show  distinctly  and  positively  that  it  is  false  ;  but  when  you 
place  to  it,  the  o|>posite  testimony,  it  solves  all  these  dilTiculties, 
What  man  can  say  that  the  force  of  the  testimony  of  the  four  Morri- 
sons, and  the  other  testimony  to  sustain  them,  can  ever  woi^h  at  all, 
against  any  witness  positively  showing  that  on  this  occasion,  the  pris- 
oner was  on   the  ground  ? 

I  do  not  feel  very  much  enlisted  in  this  cause;  I  believe  the  pris- 
oner is  guilty  ;  if  he  be,  and  it  clearly  appears  so,  remember  not  only 
this  country,  but  England  herself,  holds  you  responsible,  under  the 
exaction  of  a  juror's  oath,  in  the  presence  of  God,  and  the  face  of 
man,  to  pronounce  him  guilty.  Should  motives  of  policy  be  brought 
into  the  jury-box?  No;  look  through  the  case,  examine  it  faithfully, 
and  it  you  are  not  convinced  that  the  prisoner  was  one  of  those  per- 
sons on  the  expedition,  I  feel  confidant  that  you  will  acquit  him.  "  I 
feel  no  apprehensions  of  his  conviction,"  says  the  learned  gentleman 
for  the  prisoner,  and  yet  adds,  if  there  be  a  doubt  in  your  minds,  ac- 
quit him :  so  say  I.  But  the  door  of  doubt  should  be  shut  up  till  ev- 
ery etfort  is  made  for  the  purpose  of  direct  conclusion;  it  is  only  in 
cases  where  the  mind  cannot  come  to  a  conclusion,  that  there  is  room 
for  doubt:  but  begin  with  doubt,  and  so  treacherous  is  the  mind,  that 
it  will  continue  to  doubt — doubt-  doubt,  and  never  come  to  a  con- 
clusion. I  ask  you  to  take-up  this  testimony,  and  view  it  with  all  the 
powers  of  mind  you  have  ;  the  people  will  see  this  testimony,  and 
when  the  verdict  is  pronounced,  it  will  be  such  as  we  can  look 
into :  then  we  can  say  whether  it  has  been  decided  according  to  jus- 
tice, though  perhaps  it  might  have  been  more  politic,  to  have  decided 
it  ag  tinst  the  force  of  evidence. 


'V 


\ 


\  \ 

1  V       i 


^^ 


McLRoi>'«  tiHai-. 


305 


(  Htopprd 
ford,   iiihI 
witli  hirii 
)n  of  tin' 
:i  coMver- 
takfii  lli(> 
Morrison, 
oiilil  linvi! 
us  iiinmi- 
nn.     It  in 
:  iiH  made 
have  all  11- 
ttlion  you 
lifTiciiUit's. 
)ur  Morri- 
i^h  at  all, 
[I,  tlic  priri- 

3  the  pris- 
ir  not  only 
under  the 
the  face  of 
he  hro»i|a[ht 
;  faithfully, 
those  pov- 
t  him.     "  I 
gentleman 
minds,  ac- 
np  till  ev- 
is  only  in 
re  is  room 
mind,  that 
to  u  con- 
vith  all  the 
imony,  and 
c  can  look 
ing  to  jus- 
ive  decided 


THE  ATTORNEY  (JKNKKM/^  ('r.OS[N(!  AODURSS. 

May  rrri. i:\sR  Tin;  ''n'n'r  wit  (Jk^sti.f.mkn  nv  tiik  Ji'hv:  Worn  down 
with  the  Jaliors  of  this  c  ■'•^>\  I  nmciillMl  upon  at  thin  late  hour  lo  lirar 
lip,  not  ni,'iiinst  llif  iiilriiiMc  merits  of  the  <  ,,:i(i,  hut  auaiiist  the  powei*- 
fill  elo(|ii(Miee  and  the  (jreiit  prr^omil  inlliieiiee  o(  'h'*  eoiintei  for 
the  prisoner — to  hear  up  this  «•«•«'  under  my  own  latirfue.  and  <>x- 
liaiisted  ii«  you  are  hy  this  Iriiil,  whieh  lm<  h  en  of  so  irreiit  extent, 
aifainst  false  issues,  wliieh  the  in</enuily  of  <>(t(i(i^cl  lins  hern  loo  sue- 
<!ossfiil  ill  plaein<r  hefore  you.  iMiriii'/  the  pro'/ress  of  ijiis  rase,  rind 
the  siinimitiQ;  up,  eoiiiiscl  for  the  priscuu'r  luive  ecunplained  loiHllyof 
the  luaiiner  in  which  tlif  pro-i'cutiou  has  heeii  eoiidiielcd,  us  i|  thcri' 
had  heeii  souKUhititr  liiirsh  .'iiid  improper  on  the  piirt  ol  tlios'-  wlios*' 
duty  it  was  to  eon.luit  il  hi-t'orc"  yu.  V\'e  have  heeii  aeciis«'(l  ol  con- 
C(!aliiiLr  from  him  the  nami'sof  the  witnesses.  (Jentlemeii,  1  do  not 
feel  that  that  eharjre  is  projteriy  hrou^rht  a'^aiiist  u«.  h'or  one.  I  can 
say  it  is  not  properly  hroiijfht  at^raiiist  me.  As  to  hiirslmess  in  the 
rase,  I  owe  it  to  the  position  whieh  I  hold  to  say,  frctm  the  outset— 
from  the  first  moment  that  the  prisoner  at  the  har  was  arrested  at 
Lewist(Mi,  to  the  presetit  moment  iii  whieh  1  am  addressiiifr  you,  hy 
the  direction  of  the  Ivveeutivc;  of  your  State,  as  well  as  of  those  in 
whose  more  immediate  hands  the  prosecution  was,  every  attention 
has  hecn  fjiven  to  the  prisoner,  and  there  has  pot  hcen  left  tluf  sha- 
dow of  a  shade  of  <frouiid  for  the  enemies  of  our  State,  here  or  elwe- 
where,  to  eharpe  us  with  havinp;  tarnisliiMl  the  name  of  the  State  ol 
New  York,  in  the  administration  of  justice  to  the  prisoner  at  the  liar. 
Our  iiidiil<»'ence  has  heen  unprecedented  to  the  prisoner,  lest  per- 
chance an  opportunity  sh(»iild  he  aJlorded  to  the  ill-disposed  to  say 
that  the  State  of  New  V'orlv  has  been  pursiiinpr  the  prisoner  in  a  spirit  of 
malignity.  It  was  above  all  things  resolved,  that  in  the  administration 
of  your  laws,  "All  things  should  be  done  in  honor;  naught  in 
malice,"  It  has  also  hcen  said  tiiere  has  heen  a  committee  room,  in 
which  the,§c  depositions  on  the  part  of  the  prisoner  have  been  read  to 
the  witnesses  who  were  to  come  here  to  refute  them.  Gentlemen 
of  the  Jury,  believe  it  not.  It  is  utterly  untrue.  There  has  hecn  no 
such  committee  or  committee-room.  All  the  material  witnesses  for 
the  prosecution  have  longf  since,  on  previous  examinations,  before 
the  depositions  were  returned  from  Canada,  or  the  commissions 
issued,  stated  the  same  facts,  substantially,  as  they  have  stated  them 
here.  On  what  ground  arc  you  to  be  induced  to  believe  that  all  this 
array  of  witnesses  has  been  tampered  with,  or  that  there  is  some 
mysterious  power  extending  behind  the  Court,  driving  forward  this 
prosecution — and  for  what  {  No  adequate  motive  has  been  presented 
here.  Gentlemen,  believe  me,  it  is  not  so.  The  same  heated  imagi- 
nation which  conjured  up  conspiracies  to  murder  McLeod  in  jail,  and 
next  to  blow  up  your  Court  House,  and  other  monstrous  fancies — the 
same  heated  imagination  has  conjured  this  up  also.  I  mean  not  to 
censure  the  counsel  who  have  conducted  the  defence  of  the  prisoner. 
Far  be  it  from  me  to  do  so  ;  they  stand  in  a  situation  of  great  respon- 
sibility, and  they  have  done  their  utmost.  Gentlemen,  if  they  had 
done  less,  I  should  have  despised  them  for  being  recreant  to  their 

39 


* 


i|' 


t    < 


f 


iff 

ri 


^ijii 


306 


gouid's  reporter. 


duty.  I  pardon  faults  wliicli  arise  in  the  excess  of  zeal ;  and  if  you 
have  discovered  in  me  any  pushing  of  a  point  beyond  what  is  riirht 
and  proper,  attribute  it  to  my  zeal ,  for  1  have  thought  1  have  been 
doing  my  duty,  and  nothing  more.  Gentlemen — one  word  more  be- 
fore we  pass  to  the  merits  of  this  case.  Something  has  l)oen  said 
here,  of  the  mob  at  Lockport.  1  would  not  have  mentioned  tliis,  hut 
that  it  has  been  trumpeted  forth  tiiat  in  this  state  we  are  so  wild  and 
regardless  of  law  that  we  are  ready  to  assassinate  a  judge  on  the 
bench.  I  stand  not  here  to  apologize  for  any  appearance  of  violence 
at  Lockport,  but  the  circumstances  were  not  as  they  have  been  exag- 
gerated here  this  day,  and  as  they  have  been  represented  in  the  pub- 
lic prints  both  here  and  in  Europe.  Gentlemen — the  prisoner  was, 
by  a  judge,  let  to  bail  without  a  precedent;  and  the  people,  who 
were  somewhat  indignant  at  the  outrage  which  had  been  committed 
at  their  very  thresholds,  were  excited.  They  did  not  do  violence  to 
any  one  ;  they'insisted  that  those  who  had  become  bound  should  can- 
cel their  bond,  and  that  was  the  whole.  The  judge  cancelled  no  de- 
cision made  ;  the  individuals  bound  cancelled  their  bond,  and  the 
mob,  as  it  has  been  called,  retired.  And  why  this  I  It  was  because 
they  relied  on  you.  It  was  not  that  they  wanted  to  destroy  the  pri- 
soner, but  they  wished  the  prisoner  to  have  a  trial  by  jury.  It 
was  the  conlidence  which  they  had  in  a  trial  by  jury,  and  I 
pray  God  they  may  always  have  it.  It  was  their  confidence  in  the 
trial  by  jury  that  induced  them  to  retire  like  good  citizens,  and  allow 
the  simple  course  of  justice  to  be  pursued.  Now,  gentlemen,  what 
progress  have  we  nade  in  this  case  1  May  I  say  that  we  have  prov- 
ed that  the  Caroline  was  destroyed,  and  that  Durfee  was  murdered  ! 
I  confess,  when  the  counsel  for  the  prisoner  attacked  so  violently  the 
testimony  of  Mr.  Wells — the  honest  Mr.  Wells,  the  first  witness  who 
was  called  to  prove  the  destruction  of  the  Caroline — I  began  to  be 
alarmed  lest  we  had  not  proved  that  the  Caroline  was  destroyed,  and 
that  Durfee  was  murdered.  I  was  astonished  at  the  unprovoked  as- 
sault— the  savage  assault  made  on  the  witness,  who,  I  doubt  not,  you 
are  all  satisfied  is  an  honest  man.  He  is,  gentlemen,  as  honest  a 
man  as  any  in  the  State  of  New  York.  Hi:;  testimony,  as  far  as  ma- 
terial to  the  case,  went  only  to  prove  facts  notoriously  true ;  facts 
admitted  to  be  true  by  the  defence.  The  charge  of  perjury  made 
against  him  must  be  considered  a  gratuitous  if  not  a  malignant  libel, 
for  which  no  pretext  can  be  found  in  the  character  or  testimony  of 
the  witness.  Gentlemen,  I  do  not  think  perjury  is  quite  so  common 
as  the  counsel  seem  to  suppose ;  but,  gentlemen,  it  is  a  common 
thing  to  swear  a  little  more  than  the  witnesses  know ;  a  McNab, 
for  example,  in  his  testimony,  as  we  will  show  hereafter,  did  not  in- 
tend probably  to  swear  to  what  he  knew  to  be  false,  but  only  swore 
boldly  and  broadly  to  what  it  vvas  impossible  he  could  know  to  be 
true.  When  a  witness  is  brought  to  swear  m  a  favorite  case  which 
is  near  his  heart,  he  does  not  always  put  in  the  words  which  qualify 
his  testimony.  But  as  to  this  open,  deliberate  perjury,  in  a  case  of  life 
and  death — it  is  monstrous  and  impossible  !  What  man  can  stand 
here,  and  swear  away  the  life  of  a  human  being,  and  his  cheek  not 
blanch  I     It  is  incredible  in  itself.    I  shall  not  pause  to  demonstrate 


ind  if  you 
t  is  rig:ht 
have  been 
1  inore  be- 
bpcu  said 
'd  ihirf,  but 
0  wild  and 
Iprc  on  the 
of  violence 
been  exag- 
in  the  pub- 
isoner  was, 
lople,  who 
connnitled 
violence  to 
should  can- 
jllod  no  de- 
nd,  and  the 
vas  because 
roy  the  pri- 
[  jury.      It 
jury,   and  1 
ence   in  the 
s,  and  allow 
lemen,  what 
3  have  prov- 
5  murdered  \ 
iolently  the 
witness  who 
began  to  be 
stroyed,  and 
jrovoked  as- 
ubt  not,  you 
as  honest  a 
IS  far  as  ma- 
true  ;  facts 
erjury  made 
ignant  libel, 
;estimony  of 
so  common 
a  common 
a  McNab, 
,  did  not  in- 
only  swore 
know  to  be 
case  which 
hich  qualify 
a  case  of  life 
,n   can  stand 
is  cheek  not 
demonstrate 


Mcleod's  trul. 


307 


to  you  that  the  unfortunate  Durfee  is  no  more.  You  have  his  man- 
gled body  in  your  mind's  eye,  and  you  have  seen  the  blood  as  it -was 
described  to  you  by  the  witncssess;  you  have  seen  that  unfortunate, 
that  inolfensive  man,  unconnected  with  any  cause  of  oirence  against 
the  Canadiis,  or  any  power  whatever — his  life  taken  in  the  darkness  of 
thenisrht,  and  his  corpse  thrown  with  inuif^iiity  upon  the  wharf — our 
fellow-citizen,  remember — one  of  those  who  are  all  boimd  together 
and  to  each  other,  to  protect  each  and  all,  by  laws  which  we  have 
adopted  for  our  government  and  guidance.  We  are  bound  to  protect 
the  life  of  every,  the  humblest  citizen,  as  far  as  we  have  the  power, 
and  to  revenge  it  when  it  Is  gone.  The  life  of  a  man  maybe  taken 
in  lawful  self-defence,  or  in  the  necessary  defence  of  one's  country. 
Yes,  gentlemen,  it  might  be  taken  by  one  in  the  patriotic  defence  of 
his  country.  On  that  point  I  will  go  as  I'ar  as  the  counsel  for  the 
prisoner.  But  does  the  testimony  here  make  out  a  lawful  taking 
away  of  life  in  necessary  defence  (  Gentlemen,  it  does  not  ap- 
proach it.  This  point  has  been  clearly  discussed  by  the  go- 
vernment at  Washington,  and  1  suppose  the  counsel  for  the 
prisoner  will  not  dispute  its  authority.  The  learned  gen- 
tleman here  read  an  extract  from  the  diplomatic  correspondence 
which  has  taken  place  between  the  British  Minister  and  our  Secreta- 
ry of  State,  in  which  our  Secretary  lays  down  the  position  that  the 
affair  of  the  Caroline  was  unjustiliable  even  in  a  national  point  of 
view,  unless  there  was  a  strong  necessity  for  instant  self-defence, 
leaving  no  choice  of  means  nor  moment  for  deliberation,  a  necessit];- 
which  the  government  of  the  United  States  could  not  believe  to  have 
existed.-  The  learned  gentleman  resumed — Gentlemen,  this  has  been 
extolled  as  an  act  entitled  to  be  ranked  among  the  glorious  achieve- 
ments of  men.  You  well  recollect  the  description  of  this  boat ;  it 
was  a  ferry-boat — it  was  so  small  that  a  person  could  step  out  of  a 
row  boat  on  to  her  deck.  Was  it  then  so  terrible  an  engine  as  would 
warrant  such  an  extraordinary  midnight  expedition,  violating  the 
peaceful  soil  of  a  friendly  nation  and  murdering  its  sleeping  inhabit- 
ants 1  You  will  recollect  that  it  came  out  from  one  witness  that 
there  were  two  steamboats  lying  at  Chippewa,  either  of  which  might 
have  met  and  destroyed  her.  Gentlemen,  whatever  other  defence 
may  be  offered,  this  act  cannot  be  justified  as  an  act  of  self-defence. 
It  was  suggested  by  the  prisoner's  council  that  the  persons  on  Navy 
Island  might  have  been  starved  out  by  this  act  ;  but  this  plan, 
though  it  may  have  been  a  sagacious  one,  was  one  of  barbarian  cru- 
elty— it  was  one  which  nothing  but  the  rigor  of  war  would  justify — 
one  which  under  no  circumstances  could  we  be  expected  to  favor  or 
abet.  If  our  citizens  were  there,  on  Navy  Island,  they  were  no  long- 
er our  citizens,  and  if  they  had  been  butchered  or  hung,  there  could 
be  no  appeal  to  our  laws  ;  but  when  they  remain  within  our  own  lines, 
God  grant  that  we  may  always  be  able  and  willing  to  protect  them. 
We  are  appealed  to  on  behalf  of  this  act  in  a  manner  which  may 
affect  some  minds.  It  is  that  their  country  was  invaded  ;  and  you  are 
called  upon  and  required  to  say,  whether  we  should  not  have  done 
the  same,  if  lawless  insurgents  were  operating  against  us  in  the  same 
manner.     At  least,  gentlemen  of  the  jury,  I  should  blush  if  any  of  my 


1     1 

ff 

m  ' 

i    ■ 
1 

tl* 


i  , 


!    ■ 


,11  '^ 


b 


M 


\^ 


r        • 


!)08 


GOULD  S   REPORTER. 


own  countrymen  would  have  done  such  an  act  in  the  nig-ht.  If  it 
should  be  necessary  to  destroy  a  little  ferry-boat,  1  trust  there  will  he 
men  to  be  found  in  the  light  of  the  sun  to  do  the  gallant  deed,  if  it 
were  such,  it  was  done,  too,  gentlemen,  as  I  stated  in  my  opening, 
would  probably  appear,  by  an  armed  band  of  men  from  Chippewa. 
But  it  was  not  such  an  act  of  public  force  as  would  justify  an  indi- 
vidual engaged  in  it.  I  can  add  nothing  to  the  able  opinion  of  our 
Supreme  Court,  which  I  read  to  you  in  my  opening.  I  can  only  say, 
tluit  Great  Britain  herself  has  decided  that  question,  as  far  as  the  ef- 
fect of  an  order  of  her  government  is  concerned,  when  she  refused 
to  deliver  up  Greeley,  when  he  was  arrested  at  Madawaska,  for  tak- 
ing the  census  under  the  order  of  tl>c  United  States.  When  he  was 
arrested  for  that  act,  and  thrown  into  prison,  and  our  government 
complained  of  the  proceeding,  what  was  the  reply  of  the  Britisli 
ffovernment  ! — "  VVe  cannot  interfere — our  laAVs  must  be  respected." 
That  answer,  as  far  as  the  law  went,  was  conclusive  and  our  govern- 
ment acquiesced.  The  same  answer  is  equally  applicable  and  equally 
conclusive  now,  and  the  principle  on  which  we  acquiesced  then, 
compels  us  to  insist  now.  But  so  far  as  this  was  an  act  of  war,  that 
question  has  also  been  disposed  of  by  Great  Britain.  When  she 
seized  our  citizens  taken  on  her  shores,  she  tried  them  in  her  civil 
courts,  and  she  condemned  some  to  be  executed  and  feonie  to  be  ban- 
ished. Yes,  gentlemen,  our  citizens  have  been  thus  treated,  and  the 
wives  and  cliildren  and  brothers  of  those  men  have  kneeled  to  the 
government  at  Washington,  again  and  again,  imploring  that  some- 
thing may  be  done  to  procure  their  release  from  foreign  bondage  ; 
but  they  have  been  told  that  we  could  not  interfere.  Shall  not,  then, 
liie  same  laws  which  bind  us  from  interfering  with  those  who  tres- 
pass on  their  soil,  be  equally  imperative  and  binding  when  the  sides 
are  turned,  and  their  citizens  trespass  on  our  soill  During  this  dis- 
cussion, gentlemen,  your  attention  has  been  directed  to  some  few  in- 
stances, supposed  to  be  analogous  to  this  case.  I  will  not  detain  you 
at  this  late  hour,  but  I  cannot  allow  an  occasion  of  so  much  interest 
here  and  elsewhere,  to  pass  without  one  word  with  reference  to  these 
instances,  which  are  cited.  We  are  reminded  of  the  case  of  Flori- 
da ;  a  protracted  system  of  aggression  and  annoyance  continued  there 
for  more  than  three  years.  At  last  General  Jackson,  compelled  by 
the  very  extremity  of  necessity  in  the  defence  of  our  frontier,  pur- 
sued the  fugitive  Indians  beyond  our  boundary  into  the  territory  of 
a  nation  at  peace  with  us.  What  was  the  result  1  Why  as  you  all 
remember,  gentlemen,  the  subject  was  brought  before  Congress  and 
referred  to  committees  of  the  Senate  and  of  the  House  of  Represent- 
atives. These  committees,  a  majority  of  which  were  the  personal 
and  political  friends  of  General  .lackson,  then  covered  with  fresh  lau- 
rels, the  darling  of  the  nation,  were  compelled  in  spite  of  their  person- 
al admiration  of  the  man,  to  declare  that  the  act  was  an  unlawful  asf- 
gression  upon  a  friendly  nation.  Why  then  is  the  case  so  totally  dis- 
similar in  every  particular,  brought  up  as  a  precedent  on  this  occasion^ 
Again,  we  are  referred  lo  the  case  of  the  Leopard  and  the  Chesa- 
peake. It  is  the  very  case  I  would  select  to  prove  the  correctness  of 
the  decision  of  our  Supreme  Court.     The  commander  of  the  Leopard 


MCLEOD  S    TRIAL. 


309 


iffht.     If  it 
icre  will  be 
deed,  if  it 
ly  openiniT, 
Chippewa, 
'y  an   indi- 
ion  of  our 
n  only  say, 
ir  as  the  ef- 
he    refused 
ia,  for  tak- 
hen  he  was 
trovernment 
the    British 
respected." 
our  govcrn- 
and  equally 
esced  then, 
of  war,  that 
When  she 
in   her  civil 
lie  to  be  ban- 
Lted,  and  the 
3eled  to  the 
that    some- 
n  bondage  ; 
all  not,  then, 
e  who  trcs- 
sn  the  sides 
ring  this  dis- 
some  few  in- 
jt  detain  you 
uich  interest 
;nce  to  these 
se  of  Flori- 
itinued  there 
ompelled  by 
rontier,  pur- 
territory  of 
y  as  you  all 
Jonjrress  and 
)f  Represent- 
the   personal 
ith  fresh  lau- 
their  person- 
unlawful  ag- 
;o  totally  dis- 
lis  occasion  ? 
d  the  Chesa- 
►rrectness  of 
the  Leopard 


made  an  unprovoked  attack  upon  the  Chesapeake  in  time  of  profound 
peace.  Our  government  complained  to  Great  Britain  of  the  outrage, 
and  demanded  that  the  commander  should  be  punished,  and  he  was 
punished  by  being  removed  from  his  command.  The  learned  coun- 
sel asks,  with  an  air  of  triumph,  "  Could  that  man  have  been  tried 
here  '."  Passed  all  question,  had  he  been  found  here,  he  could  and 
would  have  been  tried  and  punished  here — else  the  demand  upon 
England  for  his  punishment  would  have  boon  an  absurdity.  Else  an 
ofibndcr  in  such  cases  should  tlee,  not  to  his  own  country,  but  to  the 
offended  nation,  where  alone  he  is  protected  from  punishment.  In 
that  case  the  British  Government  disavowed  the  act,  in  this  it  has 
not.  Can  the  views  of  the  British  Government  alter  the  nature  of 
the  act,  or  effect  the  power  and  jurisdiction  of  our  Courts  !  Our 
Government  declares  it  to  be,  not  an  act  of  war,  but  an  act  of  lawless 
violence  in  time  of  peace.  The  British  Government  agrees  it  was 
not  an  act  of  war,  but  insists  that  it  was  an  act  of  justifiable  defence. 
The  question  of  the  lawfulm'ss  of  the  act,  which  is  the  point  of  dif- 
ference between  the  two  Goveinments,  is  one  which  belongs  peculiar- 
ly to  the  judiciary  ;  and  if  the  executive  opinions  of  either 
Government  are  to  influence  us,  shall  we  not  be  controlled  by  the 
views  of  the  Executive  of  our  own  Government,  rather  than  by  the 
groundless  assumptions  of  the  Executive  of  Great  Britain  ! 

Mr.  Spencer — The  British  Government  say  that  it  was  an  ex- 
ertion of  force,  defended  by  the  circumstances,  and  declare  that  the 
orders  given  by  the  Provincial  government,  received  their  sanction. 

Attorney  General — And  when  our  Government  admits  the  cor- 
rectness of  this  assumption,  it  will  be  time  enough  for  our  Courts  to 
take  notice  of  it.  The  United  States  have  jurisdiction  of  this  matter 
as  an  Executive,  not  a  Judicial  power  ;  the  acts  of  the  Executive  are 
binding  here ;  if  to-morrow,  at  Washington,  tliey  make  a  treaty  in 
which  it  is  stipulated  that  the  prisoner  is  to  be  delivered  up,  his 
chains  fall  from  him.  One  word  more  ;  although  I  am  conscious 
I  am  trespassing  ou  your  patience,  permit  me  to  say  one  word  more 
before  I  leave  this  subject  ;  for  another  opportunity  may  not  occur 
to  vindicate  the  course  of  our  State.  It  is  false  that  the  authorities 
of  New  York  have  been  delinquent  in  reference  to  these  transactions  ; 
the  authorities  have  done  all  they  could.  Governor  3Iarcy  issued 
his  proclamation,  he  went  personally,  and  it  will  be  obs  rved  that  the 
information  of  the  acts  of  the  insurgents  arrived  at  Albany  about  the 
16th  of  December,  and  there  was  but  scarcely  a  week  before  this 
catastrophe  occurred.  I  stand  boldly  here  and  say  tluit  A"ew  York 
has  done  her  duty,  and  her  whole  duty  in  this  case  ;  her  Sheriffs,  her 
District  Attorneys,  and  her  officers  have  done  their  whole  duty.  At 
the  very  time  the  event  took  place  the  excitement  was  almost  quiet- 
ed, and  but  for  this  foul  and  fatal  deed,  all  would  have  gone  of! 
peacefully.  There  is  not  the  shadow  of  a  cause  of  complaint  against 
the  State,  that  she  has  not  caused  her  laws  to  be  executed,  or  against 
the  United  States,  that  she  has  not  been  able  and  willing  to  fulfil,  to 
the  point  of  honor,  all  her  obligations  to  her  friend  and  ally. 

Mr.  Spencer — I  take  occasion  to  say  that  neither  Mr.  Bradley  nor 
myself  have  said  one  single  word,  arraigning  the  United  States  Gov 


m 

■   1    ' 

1 

i 

{  \ 


k 


!» 


310 


GOULD  S   IlEPORTER. 


ernment  or  the  Government  of  the  State  of  New  York,  in  this  mat- 
ter, for  omission  of  duty,  but  have  confietl  ourselves  expressly  to 
those  participating  in  it. 

Judge  Gkiulev  here  intimated  that  the  Court  would  adjourn  until 
to-morrow  morning,  and  the  learned  counsel  suspended  the  conclu- 
sion of  his  remarks. 

EIGHTH    DAV. 


The  Court  re-assembled  this  morning  at  a  quarter  to  8  o'clock, 
at  which  time  many  ladies  were  in  attendance,  and  the  court  was 
completely  filled  in  every  part.  As  soon  as  the  jury  had  been  called 
and  the  court  had  been  properly  opened,  the  Attorney  General  re- 
sumed his  address  to  the  jury,  in  which  he  was  interrupted  last  night. 
He  spoke  as  follows  : 
Gentlemen  ot"  the  .Jury  : 

Wc  have  established  that  Amos  Durfee  was  murdered;  it  now  remains 
for  us  to  show  by  whom  this  murder  was  committed,  and  whether 
by  the  prisoner  who  is  charfred  with  it.  Let  us  first,  look  into  the 
circumstances  which  immediately  preceded  this  transaction,  and  in 
this  manner  explain  something  of  the  position  of  the  parties,  and  see 
if  there  arises  a  probability  or  improbability  as  to  the  prisoner's  par- 
ticipation in  that  transaction.  We  have  from  him  an  account  of 
himself  the  previous  day  ;  he  tells  us  that  the  night  before  this  he 
started  from  Chippewa  to  Niagara;  he  had  proceeded  as  far  as  the 
Pavilion,  when  he  was  informed  that  the  Caroline  had  come  down, 
and  although  it  was  then  night,  he  mounted  his  horse  and  went  back  to 
Chippewa  with  that  important  information ;  he  goes  to  the  head 
quarters  of  the  commander-in-chief,  Sir  Allan  McNab,  and  informed 
him  that  the  Caroline  had  come  down ;  the  reply  was  that  McNab 
could  not  act  merely  on  her  coming  down.  Act  howl  The  subse- 
quent catastrophe  shows.  He  tells  you  that  before  daylight  he  fur- 
nishes a  crew  of  eight  persons,  and  they  went  round  Navy  Island,  to 
investigate,  in  order  to  furnish  materials  on  which  Sir  Allan  McNab 
could  act  :  that  he  did  not  lind  the  Caroline  till  two  o'clock,  when 
he  found  her  coming  down,  and  passina-  from  the  Island  to  Schlosser, 
and  from  Schlosser  to  the  Island.  What  does  he  next  do  1  We 
next  discover  him  at  three  o'clock,  P.  M.;  we  find  him,  with  closed 
doors,  in  consultation  with  Captain  Drew,  McNab,  and  others.  He 
had  exposed  his  life  to  peril  the  night  previous  by  shots  from  Navy 
Island  ;  the  great  fact  has  now  become  developed,  and  the  chiefs 
were  assembled  in  counsel.  You  are  told  that  this  is  very  improba- 
ble, that  they  would  be  collected  in  a  counting-room  or  a  store,  to 
consult  al)out  matters  of  this  kind.  Under  other  circumstances,  it 
would  have  been  improbable  ;  if  the  plot  was  some  open  and  gallant 
act,  you  would  have  found  them  at  head  quarters,  in  their  places 
consulting  on  the  measures  to  be  pursued ;  but  it  was  an  act  of  an- 
other kind — a  midnight  incendiarism ;  and  they  had  met  thus  ;  it 
would  not  do  to  be  collected  in  any  other  manner.  It  is  in  perfect 
keeping,  and  throws  light  and  confirmation  on  the  case  in  all  its  fea- 
tures.    They  were  met  in  consultation,  there,  at  three  o'clock ;  and 


tlenK 

lieve 

it  is 

at  th( 

man. 
I 

testin 

was 

Ei^ 
at  di 
the  c 
It  is 
Thef 
morn 
the  s 
is  tesi 
a  moE 
been 


111 


MCLEOD  S   TRIAL. 


311 


m 

1 

1  this  mat- 
(prcssly  to 

journ  until 
;he  conchi- 


1(1  the  fletermination  to  desti 


the 


1  8  o'clock, 
court  was 
been  called 
jeneral  re- 
d  last  night. 


low  remuins 
ad  whether 
lok  into  the 
ion,  and  in 
ies,  and  see 
isoner's  par- 
account  of 
fore  this  he 
is  far  as  the 
:omc  down, 
^vent  back  to 

0  the  head 
[id  informed 
that  McNab 

The  subse- 
light  he  fur- 
vy  Island,  to 
illan  McNab 
clock,  when 
to  Schlosser, 
t  do  1  We 
with  closed 
others.  He 
s  from  Navy 
the  chiefs 
cry  improba- 
)r  a  store,  to 
imstances,  it 

1  and  gallant 
their  places 
,n  act  of  an- 
Tiet  thus ;  it 
is  in  perfect 
in  all  its  fea- 
o'clock;  and 


then  and  there  was  the  desion  and  the  rlelermmation  to  destroy  the 
Caroline,  fixed  upon.  You  find  the  prisoner  then  retiring  from  his 
council  to  his  bed  ;  was  it  all  then  so  quiet  and  peaceful  1  Had  the 
great  object  buen  achieved,  that  all  his  cares  should  be  thrown  aside, 
and  he  quietly  retire  to  rest  !  No  :  that  was  but  to  refresh  his  na- 
ture for  a  night's  expedition  to  destroy  the  Caroline;  all  this  is  in 
keeping.  If  any  man  on  the  border  would  have  engaged  in  it,  it  was 
that  man  ;  you  find  him  busied  about. and  consulting  immediately  be- 
fore it  was  carried  into  execution;  you  find  him  on  the  spot  equally 
busy  after  the  return  of  the  expedition.  If  we  should  go  no  further, 
governed  by  the  laws  of  motive  which  regulate  the  conduct  of  men, 
we  could  all  say  that  the  individual  would  probably  be  found  in  this 
expedition  ;  these  facts  alone  establish  a  sort  of  presumption  of  it. 

We  next  produce  a  witness  from  on  board  the  Caroline,  who  was 
there  during  this  fatal  and  dastardly  attack.  We  find  one  gentleman, 
who  had  seen  him  but  a  few  days  before,  who  knew  his  appearance 
as  it  then  was — for  men  change  in  their  appearance  from  year  to  year — • 
and  if  you  produce  a  witness  who  has  seen  an  indidividual  a  year  be- 
fore, he  may  not  be  able  to  say  it  is  the  same  man.  We  produce  a 
witness  who  had  seen  him  but  a  few  days  before  ;  he  says  that  when 
he  opened  the  door  of  the  companion  way,  to  escape,  he  saw  the 
prisoner,who  made  a  thrust  at  him  with  a  sword  ;  it  was  but  a  moment, 
but  he  believed  then,  and  had  no  doubt  but  it  was  the  prisoner,  so  the 
next  day,  and  the  day  after.  Thiswitness,  you  will  recollect,  was  the 
captain  of  the  boat — Captain  Appleby  ;  he  was  inquired  of  whether 
he  would  -now  swear  that  this  was  the  individual ;  he  says  "  no,"  four 
years  had  passed  ;  the  circumstancfes  under  which  the  prisoner  had 
lived  and  acted,  had  changed,  and  in  human  probability,  his  appear- 
ance had  changed.  I  might  refer  to  the  sickness  and  confinement 
of  the  prisoner  having  changed  his  appearance ;  but  he  swore  at  the 
time  that  he  believed  it  was  the  prisoner.  Up  to  this  time,  gen- 
tlemen, although  the  proof  is  such  as  would  induce  any  of  us  to  be- 
lieve the  prisoner  was  the  man,  unless  it  was  shown  to  the  contrary,  yet 
it  is  not  conclusive  ;  the  busy  conspirator  may  have  proved  a  coward 
at  the  pinch,  and  Captain  Appleby  may  have  been  mistaken  in  his 
man. 

I  will  now  call  your  attention  to  the  next  class  of  evidence  ;  the 
testimony  of  those  witnesses  who  have  heard  the  prisoner  declare  he 
was  one  of  the  marauders. 

Eight  witnesses  have  sworn  before  you,  that  they  heard  him  declare 
at  different  times  and  places,  that  he  was  there  and  participated  in 
the  destruction  of  the  Caroline.  Can  you  disbelieve  this  testimony  ? 
It  is  impossible  ;  the  laws  of  your  minds  will  not  allow  you  to  do  it. 
The  first  witness  is  Corson,  who  on  two  different  occasions — on  the 
morning  after,  and  two  or  three  days  after,  when  he  was  standing  on 
the  shore  with  his  spy  glass,  heard  him  make  the  expression,  which 
is  testified  to  by  this  witness.  I  will  dwell  a  moment  on  this  matter  ; 
a  most  virulent  attack  has  been  made  on  Corson.  This  witness  has 
been  examined  before  us,  and  is  well  known  to  the  counsel  for  the 
prisoner ;  it  was  known  that  he  would  be  here ;  he  was  a  neighbor 
of  the  counsel ;  will  you  tolerate  that  the  counsel  should  come  here, 


i    I 


1  - 

% 

[ 

9 


312 


Gould's  aEPoRTSR. 


and  by  their  own  word  denounce  n  witness,  instead  of  bringing  wit- 
nesses to  impeach  him,  when  they  knew  he  would  be  here.  They 
could  not  impeach  him  ;  not  a  more  respectable  man  lives  in  the 
country,  and  if  his  character  could  be  touched  by  an  impeachment, 
ihe  wilnessess  would  have  been  brought  forward,  if  there  were  any 
on  earth  ;  the  importance  of  his  testimony  we  all  know.  What  has 
been  doni;  I  A  single  expression  in  his  testimony  has  been  caught 
at  and  ur^-ed  upon  you  as  improbable.  He  was  asked  who  was  pre- 
sent when  he  heard  the  prisoner  declare,  the  morning  after,  what  he 
had  done  on  board  the  Caroline.  He  answered  "It  seems  to  me  at 
this  moment,  that  Caswell  was  there,  but  I  am  not  positive."  On 
bein:;  further  questioned,  ho  said  that  Caswell  was  present,  and  that 
they  had  conversed  on  the  subject  that  morning,  and  naturally  told 
each  other  what  they  had  seen  and  heard  on  the  morning  after  the 
destruction  of  the  Caroline.  Now  the  prisoner's  counsel  says  it  is 
improbable  that  it  should  have  occurred  to  the  witness  then  for  the 
first  time,  that  Caswell  was  there.  It  must  have  occurred  to  him  in 
the  morning  when  they  Avere  talking  together.  Well,  what  then  J 
The  witness  used  a  common  form  of  expression,  which  is  not  to  be 
taken  literally,  and  which  did  not  necessarily  imply  that  it  had  never 
occurred  to  him  before.  Now  is  there  any  thing  in  it,  even  if  taken 
liter.ally  1  Caswell  did  not  tell  witness  that  he  saw  him  there, 
nor  had  any  question  arisen  between  them,  whether  they  saw  each 
other  or  were  there  at  the  same  time.  For  the  first  time  the  ques- 
tion was  put  to  the  witness  on  the  stand — "  Who  was  there  {"  It  is 
the  first  time  his  mind  is  turned  to  that  point,  and  not  improbable  It 
did  then  first  occur  to  him  that  Caswell  was  there.  We  are  here 
surrounded  by  many  people,  some  of  whom  you  know.  We  go  home, 
and  the  scene  passes  away,  and  none  of  you  will  task  his  mind  to  re- 
collect who  was  here.  Three  years  hence  you  are  placed  upon  the 
witness's  stand,  and  for  the  first  time  asked  who  was  present  here. 
You  then  go  into  your  own  mind ;  your  imagination  calls  up  the 
scene,  and  for  a  moment  you  seem  to  contemplate  the  picture  again 
— and  face  after  face  again  is  seen,  and  among  them  there  is  some 
dim  glimmering  of  a  face  that  you  know — it  may  be  imagination  and 
it  may  be  fact.  But  then  for  the  first  time  it  occurs  to  you.  Why  1 
Because  then  for  the  first  time  the  question  is  put  to  you.  There  is 
nothing  remarkable  or  inconsistent  with  our  experience  in  supposing 
that  it  should  for  the  first  time  have  occurred  to  the  witness  that  he 
saw  the  face  of  his  acquaintance,  Caswell,  when  on  the  stand  the 
question  was  for  the  first  time  put  to  him. 

This  is  the  only  objection  which  the  ingenious  counsel  has  been 
able  to  discover  in  the  testimony  of  Corson.  And  on  such  con- 
temptibly frivolous  matter  has  he  ventured,  in  his  desperate  zeal,  to 
charge  a  well-known  and  respectable  citizen  wit!'  "A^iiiul  perjury. 

But,  gentlemen,  if  this  unimpeached  witness  is  to  be  believed,  he 
establishes,  not  only  that  the  prisoner  on  two  occasions,  in  the  pre- 
sence of  numerous  persons,  boasted  that  he  was  one  of  the  destroy- 
ers of  the  Caroline,  but  also  the  all-important  facts  that  the  prisoner 
was  not  at  Morrison's  at  sunrise  the  next  morning,  but  at  Davis's  ta- 
vern in  Chippewa. 


H. 


Mcleod's  tbial. 


313 


Ting  wit- 
c.    They 
H   in   the 
lachment, 
were  any 
What  has 
n  caught 
was  pre- 
,  what  he 
to  me  at 
ive."     On 
,  and  that 
irally  told 
after  the 
says  it  is 
en  lor  the 
to  him  in 
hat  then  ? 
not  to  be 
had  never 
en  if  taken 
[lim   there, 
saw  each 
the  ques- 
eV     It   is 
jrobable  It 
•   are  here 
e  go  home, 
mind  to  re- 
d  upon  the 
esent  here. 
s   up   tlie 
cture  again 
_re  is  some 
ination  and 
ou.    Whyl 
There  is 
(1  supposing 
,ess  that  he 
stand  the 

has  been 
such   con- 

ite  zeal,  to 

perjury. 

jelieved,  he 
in  the  pre- 
he  destroy- 

le  prisoner 
Davis's  ta- 


The  next  witness,  to  whom  I  will  call  your  attention,  ou  this 
point  of  the  declaration  of  the  prisoner  that  he  was  there,  is  Park. 
He  says  a  day  or  two  after  the  destruction  of  the  Caroline  he  heard 
the  subject  discussed  in  the  officers'  mess-room,  and  McLeod  was 
there,  and  made  the  declaration  that  he  participated  in  the  destruc- 
tion of  that  boat.  I  will  not  stop  now  to  comment  on  his  testimony, 
but  defer  it  till  I  come  to  where  it  is  more  material.  It  appears 
from  the  testimony  of  Davis  and  Park  that  there  were  two  bar- 
keepers, Johnson  and  Park;  it  was  a  busy  time  then;  twenty-five 
hundred  soldiers  were  there.  You  can  easily  perciive  liow  in  these 
circumstances  any  of  our  country  villages  would  be  overrun  by 
a  body  of  twenty-live  hundred  men.  This  was  the  case  at  Chippewa  ; 
the  taverns  were  full,  everybody  was  put  in  requisition  about  them, 
and  tliey  were  open  night  and  day.  Park  says  he  retired  to  bed  at 
11  o'clock,  and  Johnson  was  up  during  the  remainder  of  the  night. 
I  have  shown  to  you  that  every  elFort  has  been  made  to  procure  the 
attendance  of  the  barkcopor  at  this  trial.  He  lives  in  another  State, 
and  I  am  not  authorized  to  compel  him  to  come,  or  pay  him  any  fur- 
ther than  his  expenses.  But  it  is  not  so  with  the  prisoner ;  our  law 
gives  him  the  power  to  issue  a  commission  and  take  testimony 
everywhere  ;  it  gives  no  such  power  to  the  prosecutor  ;  I  cannot  do 
it ;  he  can  ;  where  then  is  the  testimony  of  this  barkeeper  I  This  is 
not  a  new  thing  ;  the  counsel  well  knew  the  importance  of  the  testi- 
mony of  Johnson,  if  they  wished  to  contradict  the  testimony  of 
other  witnesses.  Why  did  they  not  get  Johnson  to  show  the  trans- 
actions of  that  night  at  Davis's  tavern  1  The  next  Avitness  who 
testifies  to  the  prisoner's  declaration  is  Henry  Myers;  he  was  the 
one  who  in  moving  from  Canada  with  his  family  had  so  much  difli- 
culty  in  finding  his  way  across  the  river.  He  tells  you  that  while  at 
Niagara  baiting  his  horse,  there  was  a  crowd  of  persons  assembled 
together,  some  of  them  dressed  in  military  habiliments,  and  were 
carousing  in  the  tavern,  and  drinking  there  together  ;  that  McLeod 
was  among  them,  and  he  testifies  to  some  expressions  there  used  by 
McLeod. 

The  learned  counsel  supposes,  because  the  prisoner  could  not  well 
have  done  all  that  he  boasted  of,  while  brandishing  his  pistol  and  his 
bloody  sword,  and  attempting  to  astonish  the  Canadian  militia  in  a  bar- 
room, that  therefore  our  witness  is  discredited.  Not  so.  We  do  not 
pretend  that  all  the  prisoner  has  said  is  true  ;  his  statements  here  in 
evidence  prove  the  contrary.  His  improbable  boasts  may  discredit 
himself,  but  not  the  witness  who  heard  him  make  them. 

The  counsel  also  urges  you  to  disregard  the  testimony  of  this 
witness,  because  the  expressions  sworn  to  by  him  are  unusual.  If 
you  knew  the  prisoner  you  might  pretend  to  judge  whether  such 
expressions  were  usual  with  him,  and  might  probably  issue  from  his 
mouth;  but  without  such  knowledge  you  can  only  judge  from  the 
unimpeached  testimony  of  the  witness ;  you  can  see  only  by  his 
eyes,  and  hear  only  by  his  ears. 

You  -are  told  that  this  witness  is  stupid,  that  he  has  not  sense 
enough  to  keep  the  highway.  It  may  be  so.  But  remember  that 
the  counsel  also  told  you  that  all  the  witnesses  for  the  prosecution 

40 


^ . 


i 

\   . 
1 

'  /'i 

Iff 


m 


'>  iU   Hi 


314 


GOULD  S    REPORTER. 


had  combined  find  conspired  tofretlicr  to  invent  a  talc  of  falsehood 
in  order  to  procure  tlic  conviction  of  the  prisoner.  Are  stupid  men 
selected  to  act  a  part  in  so  intricate  and  complex  a  jr-inie,  when  <i 
single  mistake  or  inconsistency  would  baffle  the  design  and  expose 
the  conspiracy  I  A  stupid  man  may  tell  the  truth  as  well  as  a  wise 
man  ;  but  can  he  give  to  falsehood  the  circinnstance  and  color  of 
truth,  and  escape  undetected  from  the  searching  cross-examination 
of  the  ingenious  and  powerful  advocate  1  The  very  stupidity  of 
this  witness  refutes  the  charge  of  conspiracy  and  perjury  so  unscru- 
pulously made  by  the  counsel  for  the  prisoner.  This  witness  has 
told  you  no  invented  tale.  He  has  told  you  what  he  heard  and  saw. 
The  next  Avitness  is  Calvin  Wilson.  He  was  ferry-keeper  at 
Niagara  ;  he  tells  you  that  he  met  McLeod  with  a  group  of  persons  ; 
he  thinks  one  of  them  was  Raincock,  that  had  been  a  deputy  col- 
lector. You  recollect  what  was  said  at  that  time ;  witnesses 
have  been  brought  before  you  to  show  that  Raincock  had  left  the 
country  at  that  time.  This  impeaches  the  witness.  It  is  no  part 
of  my  business  to  wish  you  to  receive  any  testimony  that  is  not 
beyond  impeachment ;  the  witness  is  so  much  impeached  that  I 
would  not  place  any  great  reliance  on  what  he  says.  The  possi- 
bility is,  that  he  was  mistaken — that  he  did  not  see  Raincock  ;  and 
it  is  possible  that  the  witnesses  on  the  other  side  were  mistaken. 
It  is  by  no  means  established  that  this  man,  Raincock,  was  not  there  ; 
but  the  evidence  before  you  is  such  as  to  warrant  you  in  doubting 
whether  much  reliance  is  to  be  placed  on  this  witness,  and  I  there- 
fore lay  him  aside,  and  will  not  insist  on  his  testimony.  The  next 
witness  is  William  H.  Caswell,  who  heard  him  make  the  same  decla- 
ration, near  Davis's  tavern,  at  an  early  hour  the  next  morning.  You 
will  call  to  your  recollection  the  person — his  manner  and  deport- 
ment were  those  of  an  intelligent  man — there  was  no  air  of  eagerness, 
no  disposition  to  make  out  a  strong  case  before  the  jury,  and  for 
that  matter  I  appeal  to  you,  if  every  witness  brought  before  you  has 
not  shown  rather  a  reluctance  than  an  over  zeal.  Have  they  been 
hasty  1  Have*  they  declared  in  sweeping  language  that  they  knew 
this  and  that  1  Have  they  not  rather  had  the  information  drawn 
from  them,  fact  by  fact,  and  circumstance  by  circumstance  1  And  I 
might  turn  and  ask  you,  if  it  has  not  been  manifest  that  the  witnesses 
on  the  other  side — not  to  speak  of  the  depositions — have  been  inter- 
ested 1  Have  they  not  been  zealous  in  the  cause  1  Have  you  not 
noticed  that  the  witnesses  would  go  on  and  insist  in  telling  more 
than  they  were  asked,  whether  it  was  testimony  or  not  1  Again,  in 
reference  to  this  witness,  Caswell,  who  stands  before  you  perfectly 
unimpeached  j  he  was  a  witness  who  testified  originally  at  the  arrest 
before  Justice  Bell,  in  the  presence  of  the  counsel  for  the  prisoner. 
I  am  mistaken,  I  understand,  in  saying  that  the  counsel  was  present ; 
but  the  statement  made  out  at  the  time,  the  counsel  have  long  since 
had  copies  of  j  and  the  same  story  here  on  the  stand,  and  which  we 
are  assured  was  made  up  in  a  committee  room  to  refute  the  Canadian 
depositions,  is  a  story  told  a  year  ago.  It  is  nearer  the  truth  to 
say  that  the  Canadian  depositions  were  made  up  to  refute  Caswell 
and  others,  who  testified  long  ago  before  Bell  and  Bowon,  and  whose 


Mrr.EOD  S    TRIAL. 


315 


fiilsoliooil 
iipiil  men 
,  wluMi  a 
ul  expose 
as  a  wisp 
I  color  of 
miiination 
ipidily  of 
io  unscru- 
itness  has 
I  and  saw. 
keeper    at 
f  persons ; 
epnty  col- 
witnesses 
id  left  the 
is  no  part 
hat  is  not 
bed  that  I 
The  possi- 
icock  ;  and 
mistaken. 
5  not  there  ; 
n  douhting 
md  I  thcre- 
The  next 
same  decla- 
ring.    You 
md  deport- 
'  eagerness, 
ry,  and  for 
)rc  you  has 
D  they  been 
they  knew 
tion  drawn 
je  1     And  I 
le  witnesses 
been  inter- 
ive  you  not 
filing    more 
Again,  in 
u  perfectly 
it  the  arrest 
\e  prisoner, 
/as  present ; 
e  long  since 
d  which  we 
he  Canadian 
the  truth   to 
ute  Caswell 
I,  and  whose 


depositions  wore  made  piil)lic.  Tiiis  man  lives  in  the  neicdihorhood 
of  the  coi;ms,1  ;  his  chanictor  is  well  known,  and  if  liable  to  be  im- 
peached, the  witnesses  lor  this  purpose  would  have  been  produced  be- 
fore you.  i  ou  have  seen  llie  vigilance  with  which  these  witnesses 
have  been  sought  ;  they  have  had  time  to  send  to  I'ennsylviinia,  to 
Ontario,  for  impeaching  witnesses.  Tliero  has  been  no  want  of  infor- 
mation in  the  matter,  and  they  have  procured  in  every  instance, 
when  it  was  possible,  the  men  to  impeach  the  witnesses  brought  on 
the  part  of  the  people.  One  thing  more,  which  occurs  to  me  now  ; 
it  was  intimated  here  with  reference  to  this  Caswell,  that  having 
made  his  statement  he  came  here  and  was  compelled  to  go  over  the 
same  thing  again. 

Gentlemen,  I  make  a  remark  here,  and  wish  you  to  remember  it, 
when  I  come  to  the  commissions.  The  witnesses  produced  on  the 
part  of  the  prisoner,  in  alinost  every  instance,  have  made  aliidavits, 
which  were  published  in  Canada,  when  the  (iovernor  wished  to  make 
out  as  strong  a  case  as  he  could  ;  then  these  men  came  forward,  and 
have  been  brought  up  again  with  their  old  aflidavits  before  them, 
and  compelled  in  this  canse  to  follow  out  what  they,  under  the  heat 
of  the  moment  and  the  orilcrs  of  loyalty,  were  induced  to  say.  The 
next  witness  is  Anson  D.  Quinby,  who  heard  him  also,  about  sun- 
rise the  next  morning  near  Davis's  tavern,  make  similar  declarations 
of  his  bloody  deeds  on  board  the  Caroline.  This  witness  has  been 
attempted  to  be  impeached  in  a  formal  and  proper  manner;  but  the 
attempt  is  an  utter  failure.  One  impeaching  witness,  Lott,  whom 
npne  of  us  know  any  better  than  we  do  Quinby,  tells  you  that  he 
has  come  direct  from  the  county  court  of  the  county  in  Pennsylvania 
where  he  and  Quinby  were  witnesses  on  opposite  sides  and  swore 
against  each  other.  He  comes  here  by  another  oath  to  support  the 
lirst.  He  is  not  an  impartial  witness,  to  say  nothing  of  his  being  an 
election  officer  and  Quinby  opposed  to  him  in  politics.  Another 
^vitness  was  brought  here  to  impeach  Quinby,  himself  a  lawyer,  who 
was  employed  on  the  side  against  which  Quinby  swore ;  he  too 
thought  Quinby  had  sworn  to  what  was  not  true;  but  the  circum- 
stances which,  I  think,  will  weigh  with  you  against  all  this,  is  that, 
during  the  trial,  they  made  inquiry  to  see  if  they  could  impeach  him 
at  home,  where  all  the  parties  were  knowji,  and  abandoned  it,  be- 
cause they  saw  it  was  in  vain. 

Mr.  Spencer. — I  am  very  sorry  to  interrupt  the  Attorney  General ; 
I  think,  however,  he  mistakes  also  the  testimony  of  this  man.  I  will 
here  take  occasion  to  state  that  no  one  but  JMcNab  had  given  his  tes- 
timony previous  to  these  commissions  ;  these  men  did  not  make 
affidavits. 

The  Attorney  General. — Gentlemen,  you  have  heard  the  testi- 
mony ;  I  endeavor  to  state  the  testimony  as  I  have  heard  it ;  and  am 
unconscious  of  having  deviated  from  the  true  testimony  of  these 
witnesses,  Lott  and  Wetmore.  Lott  was  a  Justice,  and  sworn  in 
that  case  on  one  side,  and  Quinby  on  the  other.  Wetmore  said  he 
was  a  lawyer ;  he  made  inquiry  about  impeaching  him,  but  did  not 
undertake  to  do  so. 


'A 


H- 


316 


GOULD  S   REPORTEB. 


Judfje  Gridi-F.y. — He  states  also  the   reasons — because  his  aBHOci- 
ate  couiisol  believed  it  too  niiiniportiiiit  to  justify  tbc  attempt. 

Tbo  Attohnky  GKNi;R/\r,. — You  will  recollect  that  tbis  witness,  Quin- 
by,  is  far  iVoin  home,  niitl  tberoCore  it  is  an  extraordinary  ciise  ;  if 
we  had  bad  lime  to  jtrociire  sustaiiunjj  witnesses,  yon  ini^bt  then 
draw  some  inference  from  our  neglect ;  bnt  the  first  which  I  heard 
of  any  attempt  l<»  impeach  Quinby,  was  when  the  witnesses  appear- 
ed here  on  the  stand.  I  will  refer  to  the  next  witness,  Stevens; — he 
stated  some  facts,  but  was  so  evidently  mistaken,  whether  intention- 
ally or  «)therwise,  that  I  look  on  his  testimony  as  so  little  to  be 
regarded,  that  1  will  exclude  it  from  my  renuirks,  and  such  you  will 
do — exclude  it  from  your  consideration.  He  is  undoubtedly  mis- 
taken; the  facts  he  states  .are  inconsistent  with  those  stated  by  wit- 
nesses on  both  sides.  The  next  is  Timothy  Wheaton,  who  was  the 
'ast  witness  before  you,  on  the  part  of  the  prosecution.  In  the  fall 
of  ISMS,  he  saw  the  prisoner  at  the  ferry  ;  had  a  conversation  with  him; 
inquired  of  him  about  the  Patriots;  the  prisoner  go'js  on  to  tell  him, 
among  other  things,  tliat  lie  was  one  who  participi.ied  in  the  de- 
struction of  the  Caroline.  This  witness  is  positive  ;  it  has  not  been 
attempted  to  impeach  liini,  except  by  the  gentleman's  criticism  on 
etiquette,  who  says  that  the  witness  testibed  that  McLood  spoke  to 
him,  and  none  but  a  Yankee  would  address  a  person  with  whom  he 
was  unacquainted,  'ibis  might  be,  if  it  were  a  fact ;  but  he  said  that  he 
spoke  to  McLeod  first,  and  1  believe  that,  according  to  the  rules  of 
etiquette,  a  gentleman,  when  spoken  to  civilly,  will  reply,  and  that 
was  the  case  here  ;  and  perhaps  Wheaton  was  a  Yankee ;  I  think  he 
was — he  was  a  stranger  there,  and  very  \irturally  introduced  the  sub- 
ject by  saying,  "1  pity  those  poor  fellovvs!"  He  then  goes  on  to  in- 
quire about  other  transactions,  and  the  prisoner  answers  him  on  those 
points,  and  tells  him  what  took  place  sit  Navy  Island  and  at  Schlosser. 
Is  there  any  thing  improbable  in  this  1  Not  one  word  :  it  is  in  the 
highest  degree  consistent,  reasonable,  and  probable.  And  here,  gen- 
tlemen, let  me  make  one  remark,  which  may  be  of  some  assistance 
to  you,  and  throw  light  on  the  whole  argument  of  the  learned  coun- 
sel for  the  prisoner.  He  has  told  you,  and  truly  ;  and  it  was  not  ne- 
cessary for  him  to  tell  you  ;  it  was  discoverable — that  he  commenced 
the  cause  with  the  deteynination  that  every  witness  on  the  part  of 
the  people  was  a  perjured  villain  ;  and  he  cross-examined  them  on 
that  assumption,  and  has  the  assurance  to  ask  you  to  do  the  same. 
I  will  ask  you  to  take  the  other  side,  and  assume  for  a  moment,  that 
the  prisoner  was  there,  and  then  take  the  testimony,  and  see  if  from 
beginning  to  end,  it  is  not  probable.  If  you  view  it  in  one  point  of 
view,  assuming  that  he  was  not  there,  then  turn  round,  and  take  the 
other  assumptioii ;  but  when  you  go  into  the  jury  room  to  decide, 
you  must  not  take  one  hypothesis  or  the  other ;  you  are  to  arrive  at 
your  conclusion  from  the  testimony,  not  to  take  the  conclusion,  and 
from  that  consider  the  testimony.  Another  witness,  Seth  Hinman, 
saw  the  prisoner  early  next  morning  near  Davis's  Tavern  in  Chippe- 
wa— a  fact  which  utterly  overthrows  the  alibi  attempted  to  be  prov- 
ed by  the  Morrisons.  This  witness  seems  to  have  troubled  the 
learned  counsel  much  ',  he  can  find  nothing  against  him ;  he  comes 


MCr,KOI)  S   TRIAL, 


317 


asHOCi- 
t. 

s,  Quin- 
case  ;  if 
ht   then 

I  l\card 
,  appeal'- 
'US ; — he 
itiMitioii- 
Ic  to  be 
you  will 
(lly  mis- 
[l  l)y  wil- 

was  the 

II  the  tall 
with  him; 
I  lell  him, 
in  the  dc- 
i  not  been 
iticism  on 

spoke  to 
whom  he 
lid  that  he 
le  rules  of 
,  and  that 
I  think  he 
pd  the  sut- 
s  on  to  in- 
u  on  those 
Schlosser. 
t  is  in  the 
icre,  gen- 
assistance 
•ned  coun- 
\  as  not  ne- 
ommenced 
the  part  of 
1  them  on 
the  same. 
)ment,  that 
see  if  from 
ne  point  of 
id  lake  the 
to  decide, 
o  arrive  at 
Aision,  and 
h  Hinman, 
in  Chippe- 
to  be  prov- 
oubled  the 
he  comes 


k 


to  him,  and  raises  his  hntids,  and  says,  "Oh,  the  depths  of  iniquity!" 
It  reminded  inc  of  an  anecdote  I  have  heard  of  Oliver  Cromwell,  who, 
wlicn  he  wished  to  pet  rid  of  his  I'arliinnont,  went  to  one  man  and 
another,  and  charged  them  with  derelictions  here  and  there,  and 
made  various  accusations,  until  at  last  he  came  to  Sir  Harry  Vane, 
who  was  an  upright  niiin,  ai^ainst  whom  he  could  brinij  nc»  charjre — 
he  could  only  say,  "Oh,  Sir  Harry  Vane  !  Sir  Harry  Vane!  the  Lord 
deliver  ir\c  from  Sir  Harry  Vane!"     (Faint  launrbter.) 

Judge  (jrii)m:v.  'Ihcri!  is  no  reason  wlmlcvcr  for  any  exhibition 
of  this  kind,  nor  will  it  be  tolerated.  There  is  nothing  in  the  argu- 
ments of  the  counsel  or  proceedings  that  should  create  any  disturb- 
ance of  this  character,  and  the  scene  is  altogether  unsuitable  to  a 
Court  room. 

The  Attorney  Gknekal.  I  will  now  call  your  attention  to  the 
testimony  of  Leonnnl  jinsnn.  j\o  more  intelligent  man  has  appeared 
before  you,  on  either  side,  whose  matter  and  mamuT  of  testifying 
should  entitle  him  to  your  credit.  He  was  employed  at  Chippewa  at 
the  time.  He  has  not  been  attempted  to  be  impeached.  He  was 
a  witness  before  15ell,  a  year  ago.  All  that  he  says  was  well 
known.  H?  lives  too  in  IiOckport,a  neighbor  of  the  learned  counsel 
liimsolf.  And  if  any  thing  could  be  said  against  him,  you  would  have 
found  them  saying  hat  he  was  not  worthy  of  credit.  But  his  charac- 
ter defies  impeachment.  They  cannot  impeach  it.  He  says  he  heard 
the  declaration  in  the  bar-room,  in  the  company  of  a  large  number  of 
those  who  were  present  at  the  destruction  of  the  Caroline.  And  the 
only  way  they  have  attempted  to  impeach  him  was,  by  the  argument  of 
the  counsel,  who  misstates  his  testimony,  and  says  that  he  testitied  that 
he  was  awoke  at  the  burning  of  the  Caroline,  and  got  up  and  went  to 
Davis's  at  the  time.  That  is  not  his  testimony.  He  states  that  he 
was  awoke  at  the  time,  but  that  he  remained  there,  and  did  not  go  to 
Davis's  till  morning.  In  order  to  make  out  the  impeachment  he  is 
obliged  to  misstate  the  testimony. 

Mr.  Spencer.  I  think  you  are  mistaken,  if  I  have  read  my  own 
minutes  rightly,  and  they  are  true,  I  think  there  is  no  great  misstate- 
ment of  evidence. 

Judge  Gripley.  I  think  the  counsel  had  better  be  allowed  to  pro- 
ceed.    If  the  counsel  misstates  the  evidence  the  jury  will  correct  it. 

The  Attorney  General.  I  hope,  that  your  Honor  also,  will  cor- 
rect me  if  I  do  not  truly  state  the  evidence. 

Judge  GniDLEY.     I  think  your  statement  was  correct. 

The  Attorney  Genehal.  Far  be  it  from  me  to  wish  to  convict 
any  man  with  .evidence  that  is  untrue.  I  hope  in  truth  that  you 
can  acquit  the  prisoner.  All  my  duty  is,  to  have  the  facts  placed 
before  you.  Now  I  have  commented  on  all  the  witnesses,  and 
among  them  are  some  seven  or  eight,  who  stand  unimpeached.  And  1 
ask  you,  as  men,  can  you  refuse  to  say  that,  whether  the  prisoner  was 
or  was  not  there,  he  has  again  and  again  declared,  under  various  cir- 
cumstances, that  he  was  there  ?  It  is  true  that  the  declaration  of  the 
prisoner  is  not  absolute  evidence.  The  fact  that  he  declares  he 
has  done  so  and  so  is  not  positive  proof  of  it,  and  I  do  not  thus  bring 


•f 


1  • 


^#  .■' 


318 


GOULD  S    HKPOUTER. 


I 


it  before  yon  ;  nltliniiph  it  HeemsmoNt  pxtrnnrdinnry,  thnt  on  so  ninny 
occiisioiis,  hr  should  linvn  iniule  this  (Icchiiiitioii,  if  it  was  not  ho. 
Hill  on  one  or  more  oceiision«  he  iniidc  lli«!  dechinition  in  |)res('nce 
(»r  those  \\h;)  were  there.  Mtirlv  the  testimony  of  liconard  Anson. 
He  said  that  lie  declared  il,  surrounded  hy  those  who  were  warm  from 
the  coidlict.  That  he  declared— *' I  did  so  and  ho;"  and  nont!  ol 
them  disputed  it.  1  usU  yon  avImmi  he  nnide  the  dee.laration  in  the" 
prescnec  of  those  persons,  and  they  diil  not  deny  it,  if  a  did  not 
make  every  one  of  thein  a  witness  before  yon  I  Is  not  every  man  ol' 
them  a  witness  belore  you,  on  the  stan<l,  that  lie  was  thfrc  !  If  yon 
believe  the  testimony  of  Anson  and  others,  who  said  that  In-  made  the 
dcclarution  surrounded  hy  tliese  people,  yon  must  believe  that  he  was 
there.  J}ra^'i;ad(u'ios  do  not  select  such  a  place  for  their  boast. 
When,  with  their  hands  red  with  blood,  a  man  comes  amonu;'  them, 
and  says  1  was  there,  and  did  this  and  that,  it  must  be  so,  ifentlemen. 

I  will  now  proceed  to  the  testimony  of  the  witnesses  who  saw  the  pri- 
soner embark  in  tiie  boats.  The  lirsi  witness  is  Churl ts  Parke.  'Ibis 
is  a  Canadian  witness.  The  'gentlemen  have  nndertake'i  to  say  that 
this  witness  contrived  to  jret  here.  This  is  not  so.  He  would  not 
have  been  here  had  he  known  of  the  trial.  It  is  true  that  he  came 
to  Buffalo  to  purchase  a  library,  for  a  library  association — which 
very  library  he  has  purchased  in  this  city — and  was  unexpectedly 
s'tmmoned  ns  a  witness,  and  supposed  the  subpoma  a  compulsory 
process,  which  he  was  bound  to  obey.  Is  there  anything  that  should 
induce  you  to  doubt  his  testimony  \  He  knew  McLood.  Was  in  the 
habit  of  seeing  him  almost  everj'  hour  of  the  day.  He  was  not  like 
the  witnesses  on  the  part  of  the  prisoner,  who  never  saw  bim,  or  saw 
him  but  once.  Here  was  a  witness  who  was  in  the  habit  of  seeinj^ 
him  morning,  noon,  and  night,  under  all  circumstances,  and  who 
had  seen  him  but  one  hour  before — who  had,  therefore,  seen  him  in 
the  same  habiliments  in  which  be  was  at  the  embarkation,  and  he 
would  have  been  less  likely  to  have  mistaken  him  1  He  went  to  the 
place  of  embarkation,  and  saw  them  embark,  and  saw  the  prisoner 
there,  and  there  saw  him  get  into  one  of  those  boats.  Now,  gentle- 
men, here  is  a  witness  who,  if  the  prisoner  was  not  present  to  take 
a  part  in  the  destruction  of  the  Caroline,  is  a  perjured  man.  That 
man,  if  the  prisoner  was  not  there,  has  come  forward,  deliberately 
and  unblenchingly  before  you,  and  attempted,  by  perjury,  to  swear 
away  the  life  of  a  man.  To  my  mind  the  simple  fact  is  more 
incredible  than  any  thing  you  are  called  on  to  believe  in  this  cause. 
The  counsel  have  urged  on  you,  that  this  witness,  Parke,  is  opposed 
to  Press,  and  that  he  or  Press  is  perjured.  It  is  n9t  so.  Press's 
story  is  perfectly  consistent  with  the  fact  that  the  prisoner  Avas  present. 
Mark  that!  Press  states  facts  which  may  be  all  true ;  but  he  may  be 
mistaken  in  time,  which,  the  counsel  tells  you,  is  one  of  the  things 
which  are  most  easily  mistaken.  It  may  have  been  the  day  before 
or  the  day  after.  Not  so  with  Park.  If  his  story  be  not  true,  there 
is  no  corner  where  he  can  shrink  from  damning  perjury. 

Gentlemen,  let  me  advert  to  a  very  small  circumstance.  The 
learned  counsel  complains  of  Parke,  because  he  did  not  resort  to  what 
he  calls  "  white  lying," — to  some  evasive  reply,  which  he  might  have 


MCLEODS    TRIAL. 


310 


HO  ninny 

1  not  HO. 

I  Aiis»)n. 
inn  t'roni 
nonii  «•! 
tri  in  the 
I  (lid  not 
y  man  ol 
!     If  you 
iniidc  the 
III  ho  WHS 
•  if  bonst. 
)nsT  them, 
iMitlemen. 
iw  the  pri- 
kc.     Thin 
[)  say  that 
would  not 
t  he  came 
m — which 
jxpectcdly 
ompnisory 
hat  should 
Was  in  the 
18  not  like 
lini,  or  saw 
t  of  8cein<' 
and  who 
Iccn  him  in 
ion,  and  he 
[vent  to  the 
be  prisoner 
;)W,  gentle- 
nt  to  take 
Kin.     That 
lelibcrately 
I,  to  swear 
t   is  more 
this  cause, 
is  opposed 
o.     Press's 
Ivas  present, 
he  may  be 
the  things 
day  before 
true,  there 

ince.     The 

Lort  to  what 

might  have 


done  and   j?ot  ofT;  Iw  Mays  that  he  might  have  told  a  "  whit«'  lie"  nnd 
avoidcil  t«'stifyiiig  in  Uiis  niiiltrr,  by  Hi'Viii"'  iIkii  he  kiunv  uotliin'.r  nni- 
tcriiil  lo  the  cause.      U  liy  will  not  the  Ifaird  <'iiiiiisil  allow  llu"  same 
privilc"T(>    '<)   our  witness,  Drown  t      When  he  comes  to  Drown,  who, 
wIm'Ii  his  ,  imily  \\(  re    sick,  inul  he  couM  not   ntlcml,  siiid  he  did  imi 
Know  luiv    iliih'jf  of  conMM|urucc   in  the  cause  !      VV  lien  lie  comes  lo 
Down,  the  lie  is  black  enouirli.     I  wish  the  j:entl('iniin  to  bo  consis- 
tent, iMid  if  "white   lies"  may  b<'  used  in  one  e:ise,  why  not  in  anoth- 
er !     Another  olijeelinn  niiule  to   tli'-   lesliniony    of  this   witness  is, 
thai  he  said  he  did  not  know  to  whom  he  had  over  told  the  story. 
"  i\iMV,   how    improltiible,"    say   theyt   "that  is!"      "How   came    he 
here  !'"       NVhy,    believinuf    tliiit    this    was    true,    we     iiKjuired    who 
saw    it,  if  true  !  and  we   found   that  Davis,  Park,  and  Johnson,  were 
men,  of  all   others,  who   must  be  broutrht    l)ef(tre  you,  and  without 
stopping  to  in(iuire  what  ihtry  would  state,  we  proceeded  to  get  them 
here  ;  we  knew  that  J'arko  was  present  in  the  bar  room,  and  must  have 
seen  the  prisoiu-r  there  ;  there  was  no  necessity  for  him  to  divulge 
what  he    would  testify   to.       Wo   <lid    not   think     it    necessary    to 
drill  our  witnesses,  but  to  send   for    those  on  the    spot,    who  must 
have  known  of  the   transaction.     Thus  much  for  the  testimony  of  a 
witness  nnimponched,  who  says  he  saw  these  men  gel  into  the  boats 
nt  the  time   of  the  embarkation.     Now,  let  us  proceed   to  a   witness 
who  saw  them  djscndjark  ;  that  is  ^anuiel  Drown.     You  have  heard, 
gentlemen,  an  attempt  made  to  impcatth  this  witness  ;  you  iuive  heard 
'the  testimony  of  iJates;  and  also  of  Kev.  John  Marsh,  who   says  he 
knew  him  several  years  in  Canada ;  I  can  throw  no  more  light  on  the 
subject.     I  look  on  his  character  as  perfectly  sustained  ;  and  1   look 
upon  the  witness  on  the  stand  and  the  niani.cr  in  which  he  has  with- 
stood the  fearful  cross-examination,  as  presenting  him  in  an  attitude 
which    demands  your  belief;  he  is   not  a  leiirnud  man — not  a  man 
of  wealth  and  standing  ;  but  he  appears  before  you  in  the  attitude  and 
manner  of  an  honest  and  intelligent   man.     If  he  stands  impeached  at 
all.  it  is  by  Bates,  and  this  I  deny  ;  for  he  tells  you, that  for  the  last  four 
years,  his  chnraOier  has  been  unexceptionably.    Rev.  John  Marsh  says 
he  has  known  and   employed  him    for  many  years  and  never  knew 
any  thing   against  his  character.     He  has  been  attempted  to  be  im- 
peached by    the  comments  of  the   learned  counsel,   who    has    said 
that   he  went  down  to   see  a  sailor   and  did  not  speak  to  liim.     He 
did  not  say  this,  but  that  he  went  down  to  the  beacon    light;  that 
while  he  stood  there,  he  remarked   to  his  companion  that  he  wish- 
ed to  know  who  those  persons  were  ;  and  that  he  would  run   down 
and  see  them.    He  went  from  the  high  road  to  the  path  which  passes 
some  little  distance  along  the  river ;  and  Smith  kept  along  the   road  ; 
Drown  went  down  to  the  boats  and  saw   the   men  ;  he  went   for  the 
purpose  of  seeing  them;  out  of  that  Yankee  curiosity  to  know  who 
the  men  were  ;  and  he  tells   you  that  the  prisoner  at  the  bar  was 
there  ;  he  saw    him ;  he  knew   him  ;    was  familiar  with  his  face  ; 
was  in  the  habit  of  seeing  him  at  the  time ;  was  not  only    satisfied 
that  McLeod  was  there,  in  the  darkness,  but  went  with  the  troop  in 
the  road  to  Davis's  tavern,    where  the  lights  were  shining,  and  saw 
him  there  in  the  light.  He,  too,  hke  Parke,  unless  the  prisoner  was  in 


'   I 


*; 


m 


# 


1 1 


320 


GOULD  S   nEPORTEK. 


that  spot,  is  fi  pnrjnrcd  man  ;  there  is  no  escape  from  it  ;  he  is  a 
black-liearted  perjurer,  imless  the  prisoner  was  there.  He  says  he 
knows  it  was  liiin-he  is  as  sure  of  it  as  he  is  that  he  saw  him  sittinsr  liere. 
This,  jTcutlcincn,  is  the  substance  of  tlie  testimony  on  the  partof  tlie 
prosecution.  Tlic  Icaruod  counsel  for  the  defence  asks,  with  an  air 
of  triumph,  why  were  not  more  witnesses  produced  of  those  who 
were  on  board  the  boat  !  He  tells  you,  besides,  that  there  is  a  con- 
spiracy to  take  away  the  life  of  the  prisoner.  If  there  be  a  con- 
spiracy, would  not  the  same  thinjr  have  suggested  itself  to  the 
conspirators!  Could  there  not  be  found  one  reckless  man  among 
the  conspirators  to  come  forward  and  swear  that  he  saw  him  in  the 
boat  !  How  comes  it  that  such  natural  testimony  had  not  sufrgested 
itself  to  these  perjurers'?  It  would  have  been  perfectly  easy  for  one 
of  these  conspiring  perjurers  to  have  declared  himself  on  board  the 
Caroline.  No,  gentlemen  of  the  jury,  the  idea  has  its  basis  in  the 
imarrination  of  the  learned  counsel,  only,  that  a  number  of  men  from 
different  parts  of  the  State,  dragged  to  this  stand  by  compulsion,  to 
give  evidence,  should  have  prev'f^usly  concerted  a  plan  to  come  here 
and  swear  away  the  life  of  an  innocent  man.  It  is  a  thing  most  im- 
probable ;  you  cannot  bplieve  it  to  be  true.  It  is  utterly  inconsistent 
in  itself,  and  altogether  too  improbable  in  its  nature  to  obtain  belief. 
A  sweeping  attack,  gentlemen,  has  been  made  upon  the  witnesses  on 
the  part  of  the  prosecution,  that  they  were  connected  in  some  way, 
with  the  excitements  which  existed  upon  the  frontier,  and  the  con- 
tentions which  were  going  on  between  the  Canadian  authorities  and 
some  of  their  citizens.  It  is  true,  some  of  them  were  involved  in 
those  difficulties.  How  far  this  is  to  go  to  affeect  their  credit  in 
this  case,  depends  upon  you,  gentlemen.  If  you  think  that  because 
they  were  witnessing  thes?  transactions,  and  partaking  of  the 
excitement  which  it  was  natural  for  them  to  feel ;  that  therefore  they 
are  incompetent  witnesses,  I  would  ask  you,  on  the  other  hand, 
whether  those  who  testified  on  the  other  side,  and  who  were  also 
there,  are  not  equally  to  be  discredited!  I  ask  you  whether  the 
fact  of  their  bein^-  participators  in  those  excitements,  is  to  weigh 
against  their  positive  testimony  I  If  that  testimony  were  respecting 
a  question  of  quantity,  quality,  or  degree,  I  grant  you  it  would  be 
objectionable  ;  but  when  the  question  is  as  to  an  absolute  fact,wholly 
disconnected  with  themselves,  excited  feelings  furnish  no  ground  of 
objection  ;  when  the  question  is  merely  whether  they  saw  such  things 
or  not,  the  circumstance  of  excited  feelings  has  no  influence  what- 
ever. 

Gentlemen,  before  I  proceed  to  examine  the  evidence  on  the  part 
of  the  defence,  I  wish  to  make  one  remark.  The  case  made  out  on 
■  he  part  of  the  prosecution  is  one  which,  in  point  of  strength,  I  have 
rarely  seen  surpassed.  It  is  a  rare  thing  that  so  much  direct  and 
positive  testimony  should  have  accumulated  against  the  prisoner. 
This  is  a  fact  to  which  your  minds  must  assent ;  and  unless  some- 
thing be  presented  in  opposition  to  this  array  of  testimony  which  is 
physically  irreconcileable  with  it,  your  verdict  must  be  against  the 
prisoner.  Now,  what  is  the  defence  set  up  on  the  part  of  the  prison- 
er!    It  is  what  is  called  in  technical  phraseology,  an  alibi  ;  and  its 


MCLEOD  S    TRIAL. 


321 


he  is  a 

says  lie 
in?  Iierc. 
art  of  the 
ith  an  air 
lose   who 
is  a  con- 
be  a  con- 
If  to  the 
an  among 
ina  in  the 
sufjtrestnrl 
■iy  (or  one 
board  thf? 
sis    in  the 
men  from 
mlsion,  to 
come  here 
■  most  im- 
consistent 
tain  belief, 
tnesses  on 
some  way, 
1(1  the  con- 
orilies  and 
nvolvcd  in 
r  credit  in 
lat  becanse 
in?  of  the 
re fore  they 
ther   hand, 

were  also 
jrhether  the 
;  to    weigh 

respecting 
t  would  be 

fact,wholly 
)  ground  of 
such  things 
lence  what- 

on  the  part 
nade  out  on 
igth,  I  have 

direct  and 
e  prisoner, 
nless  some- 

y  which  is 
against  the 

the  prison- 
ibi ;  and  its 


1 


character  has  been  best  described  by  a  pun  on  the  word,  making  it 
a-lie-by.  You,  gentlemen,  are  not  sufficiently  acquainted,  perhaps, 
with  the  practice  of  law  to  know,  but  it  is  a  well  known  circum- 
stance in  tlie  profession,  that  the  proving  of  an  alibi,  as  a  defence 
upon  a  criminal  prosecution,  is  the  common  resort  of  all  felons.  It 
ofTers  many  advantages  to  the  accused.  He  has  first  the  power  of 
selecting  the  place  where  he  will  locate  himself;  next  he  has  the 
power  of  selecting  his  witnesses  ;  he  may  make  his  accomplices  his 
witnesses  ;  and  we  are  told  by  learned  writers  upon  tiiis  subject,  that 
often  has  it  been  known  to  be  made  the  screen  for  successful 
villainy.  He  goes  in  reality  to  the  place  fixed  upon  ;  he  has  his 
witnesses  present,  and  they  come  into  Court  and  testify  according 
to  what  happened,  but  they  fix  upon  a  diffi^rent  time  from  that  in 
which  it  really  took  place,  and  assign  the  particular  and  precise  pe- 
riod of  the  act  complained  of,  as  that  of  which  they  speak.  It  is  a 
matter  easy  to  be  established,  and  exceedingly  difiicult  to  be  contro- 
verted. For  this  reason,  it  is,  gentlemen,  that  there  is  another  rule 
which  applies  to  questions  of  this  kind.  If  it  is  a  mere  approxima- 
tion to  truth,  a  mere  probability  that  he  was  at  the  place  in  question, 
it  weighs  not  one  particle  against  the  positive  testimony  of  unim- 
peached  witnesses.  This  is  the  law  as  applied  to  an  alibi.  Now, 
gentlemen,  let  us  look  at  the  evidence  which  has  been  taken  in  sup 
port  of  the  defence.  But  first  allow  me  to  remark,  the  jury  cannot 
biii;  perceive  the  disadvantage  which  the  counsel  for  the  prosecution 
labor  under  in  establishing  their  case.  Witnesses  who  live  in  Can- 
ada are  not  within  our  power.  Those  who  were  engaged  in  the  ex- 
pedition will  not  testify  against  the  prisoner.  The  only  witnesses, 
therefore,  within  our  reach,  arc  those  who  were  on  board  the  Car- 
oline, together  with  some  who  saw  the  prisoner  embark,  and  others 
who  saw  him  return  from  the  expedition.  It  did  so  happen  that 
there  were  some  young  builders  who  came  over  and  established 
themselves  in  business  upon  this  side  of  the  line,  who  were  acquaint- 
ed with  the  prisoner,  and  who  knew  of  his  participation  in  the  expe- 
dition. And  it  is  rather  a  matter  of  surprise  that  we  have  been  able 
to  produce  so  many  witnesses.  On  the  other  hand,  how  is  it  with 
regard  to  the  prisoner  X  All  Canada  are  ready  to  come  to  the  as- 
sistance of  the  prisoner :  every  man,  woman  and  child  of  them. 
Such  is  the  position  in  which  we  stand  in  making  out  our  case. 
Such,  gentlemen,  is  the  character  of  the  testimony  which  has  been 
brought  forward  so  vauntingly  in  these  commissions.  But  you  see 
not  the  men,  you  hear  not  their  voices  ;  you  know  not  their  manner; 
and  the  same  reasons  which  have  been  urged  on  you,  to  discredit  our 
witnesses,  would  apply  with  greater  force  with  respect  to  these  de- 
positions. On  paper,  all  men  appear  alike.  You  may  take  the  most 
perjured  villain,  place  him  in  the  closet  with  his  counsel,  and  his 
testimony,  calmly  and  coolly  prepared  and  written  down,  would  ap- 
pear as  well  as  that  of  the  most  conscientious  and  upright  man. 
There  are  other  considerations,  gentlemen,  which  I  wish  you  to  car- 
ry with  you,  when  you  consider  this  tet-timony.  We  have  no  op- 
portunity for  cross-examination.  We  cannot,  of  course,  know  what 
their  answers  will  be  to  the  interrogatories  in  chief,  and  the  cross- 


*l 

(i 

;: 

» ''. 

i»- 


W\ 


•322 


GOULD  S   REPORTER. 


interrogatories  are,  therefore,  the  most  futile  means  of  eliciting  the 
truth  imaginable.  The  witnesses,  on  the  contrary,  having  the  op- 
portunity of  reading  over  the  cross-interrogatories,  as  well  as  those 
in  chief,  are  enabled  to  frame  their  answers  in  that  artful  manner, 
which  will  meet  the  whole  case.  Again,  whilst  we  have  laws  which 
very  justly  r*unish  with  imprisonment,  witnesses  who  are  guilty  of 
perjury,  these  laws  do  not  extend  to  those  who  make  depositions  in 
this  manner  in  a  foreign  country.  They  swear  with  perfect  impu- 
nity. Swear  as  they  may,  they  go  unscathed.  We  have  no  power 
over  them.  The  depositions,  therefore,  are  not  entitled  to  more 
credit  than  mere  voluntary  statements,  not  taken  under  oath. 
There  is  another  circumstance  connected  with  these  commissions, 
which  I  wish  you  to  consider.  It  has  been  before  stated  that  there 
are  many  objections  to  these  commissions,  and  among  other  things, 
that  the  names  of  new  witnesses  were  inserted,  from  time  to  time, 
as  they  happened  to  be  discovered ;  that  in  fact,  it  was  essentially  a 
roving  commission,  a  scoop-net  to  draw  up  all  that  could  be  found 
in  Canada,  whether  filth  or  not,  and  bring  it  into  Court  and  empty  it 
here  before  you.  You  may  have  observed,  and  perhaps  with  a  feel- 
ing of  censure  towards  myself,  that  I  have  objected  to  the  manner  in 
which  their  answers  have  been  framed,  and  the  commissions  execut- 
ed ;  but,  gentlemen,  it  was  the  only  way  in  which  I  could  protect 
my  case  from  these  irregularities,  by  pointing  them  out  to  your  no- 
tice. The  names  of  some  of  the  witnesses  we  never  knew  until  we 
saw  the  commissions  produced  here. 

Mr.  Spencer. — This  cannot  be  so,  Mr.  Attorney  General.  All  the 
names  were  inserted  in  the  commissions,  to  which  your  colleague  at 
all  events  was  no  stranger. 

Attorney  General. — I  only  know  that  after  the  cross-interroga- 
tories were  framed,  the  names  of  numerous  witnesses  which  I  had 
not  before  seen  were  added,  and  of  whom  I  have  reason  to  believe 
that  the  District  Attorney  was  also  ignorant.  At  all  events  they  were 
not  persons  for  whom  cross-interrogatories  had  been  framed. 

The  Judge. — It  is  just  to  say,  however,  that  the  opposite  counsel 
had  entered  into  stipulations  that  this  might  be  done. 

Attorney  General — The  Court  perhaps  misapprehends  the  tenor 
of  my  observations.  I  only  make  this  remark  to  show  that  we  have 
had  no  opportunity  of  knowing  what  their  witnesses  would  prove. 
There  is  another  circumstance,  which  I  should  not  do  justice  to  my- 
self, if  I  did  not  lay  before  you.  The  same  person  who  took  down 
the  testimony  acted  also  as  agent  in  collecting  testimony.  Now, 
gentlemen,  suppose  tins  testimony  to  have  been  taken  by  the  learned 
counsel  for  the  prisoner,  or  by  myself,  is  it  not  reasonable  to  suppose 
that  we  should  give  a  certain  degree  of  coloring  to  it  1  The  varia- 
tion might  be  apparently  slight,  yet  it  might  alter  the  whole  sense  and 
meaning  of  the  sentence.  And  that  such  coloring  would  be  given  is 
only  consistent  with  human  nature.  It  is  for  this  reason,  that  in  a 
Court  of  Chancery,  and  in  some  other  courts,  depositions  taken  by 
the  Clerk  of  either  party  would  not  be  allowed  to  be  read.  Such  is 
the  disposition  which  every  one  feels  to  state  the  case  in  the  strong- 
est manner  on  his  own  side.      And   so  doe's  he  feel  a  disposition 


' 


I    I 


Mcleod's  trial. 


323 


citing  the 
g  the  op- 
1  as  those 
1  manner, 
iws  which 
guilty  of 
)sitions  in 
uct   iinpu- 
no  power 
I  to  more 
icIcr  oath, 
nmissions, 
that  there 
her  things, 
le  to  time, 
ssentially  a 
i  be  found 
id  empty  it 
ivith  a  feel- 
manner  in 
3ns  execut- 
i\d  protect 
o  your  no- 
;w  until  we 

al.     All  the 
jolleague  at 

interroga- 

vhich  I  had 

to   believe 

they  wera 
ed. 
ite  counsel 

the  tenor 
lat  we  have 
)uld   prove, 
tice  to  my- 
took  down 
my.     Now, 
the  learned 
to  suppose 
The  varia- 
e  sense  and 
be  given  is 
that  in  a 
s  taken  by 
1.     Such  is 
the  strong- 
disposition 


mi 


also  when  he  takes  down  the  testimony  of  another,  to  give  it  all 
the  coloring  possible.  Now,  the  object  of  this  testimony  is  to 
establish  the  fact  that  the  prisoner  was  not  in  the  expedition. 
Let  us  see,  in  the  first  place,  what  we  have  a  right  to  call  up  on  the 
prisoneV  to  show.  First,  I  take  it,  we  have  a  right  to  ask  that  he 
should  bring  forward  persons  who  arc  acquainted  with  him — his  as- 
sociates— who  are  in  the  habit  of  being  with  him.  And  we  have  also 
a  right  to  insist  on  a  number  of  witnesses  somewhat  proportioned  to 
those  who  were  present  upon  the  occasion  in  question.  Wo  should 
also  require,  inasmuch  as  the  embarkation  took  place  at  dirterent 
places,  that  there  should  be  persons  presented  to  us  here  who  were 
at  both  those  points.  If  they  fail  to  do  this,  1  think  we  may  say  that 
they  have  not  made  out  a  prima  facie  defence.  It  amounts  not  even 
to  probability.  As  to  the  first  point — that  we  are  entitled  to  expect 
those  persons  to  be  produced  as  witnesses  who  are  well  acquainted 
with  the  prisoner — suppose  a  stranger  came  into  this  Court  ;  at  a  fu- 
ture day,  you  might  swear  the  whole  audience,  and  they  would  not 
say  that  they  saw  such  a  man,  because  they  neither  knew  him  nor 
recollected  him.  If,  therefore,  they  have  not  produced  persons  who 
knew  the  prisoner  well,  and  in  numbers  somewhat  proportioned  to 
the  numbers  present,  they  have  not  begun  to  make  out  a  case — they 
have  done  nothing  towards  convincing  your  minds. 

Now,  let  us  see  how  the  matter  stands  in  this  respect.  They 
have  produced  the  testimony  of  only  two  persons  who  were  present 
at  the  embarkation,  except  those  who  went  in  the  expedition,  who 
testify  to  the  absence  of  the  prisoner  ;  these  are  Captain  Sears  and 
Sir  Allan  MacNab.  Let  us  examine  their  testimony.  I  do  not  be- 
lieve, gentlemen,  that  Japtain  Sears  perjured  himself  before  you  ;  1 
have  not  the  least  idea  of  the  kind;  but  he  did  what  others  have 
done,  and  what  biased  witnesses  almost  always  do,  viz  :  swear  posi- 
tively to  what  they  only  supposed  to  be  true  without  having  the 
means  of  knowing  to  any  degree  of  certainty.  This  is  the  tempta- 
tion to  which  they  are  exposed  :  and  into  this  snare  has  Captain  Sears 
fallen.  He  says  he  saw  Davis  that  night ;  but  Davis  swears  that  he 
was  not  seen  by  any  one,  for  he  was  not  in  the  bar-room,  but  in  his 
own  private  room.  I  might  point  out  various  other  discrepancies, 
but  it  is  quite  unnecessary,  because  I  would  in  fact  rather  ad- 
duce the  testimony  of  Captain  Sears  on  behalf  of  the  prosecution. 
Sears  says  he  did  not  see  Sir  Allan  MacNab  ;  he  did  not  see  McDon- 
ald ;  out  of  five  or  six  persons  whom  he  said  he  knew,  I  named  three 
or  four,  and  to  each  one  he  answered  "  I  did  not  see  him."  Is  it  then 
wonderful  that  he  did  not  see  McLeod  1  Does  his  testimony  ad- 
vance the  defence  one  iota  \  Does  it  in  the  slightest  degree 
strengthen  your  belief  that  the  prisoner  was  not  there  because  he  did 
not  see  him  1  Why,  he  did  not  see  Mc Nab,  the  commander-in-chief, 
who  stood  there,  the  cynosure  of  all  eyes,  the  very  head  and  front  of 
the  whole  affair.  Well,  then,  is  it  wonderful  that  he  should  not  have 
seen  McLeod  \  The  other  witness  is  Sir  Allan  MacNab  himself.  He 
says  that  he  was  there,  and  he  did  not  see  McLeod.  Well,  gentle- 
men, it  is  not  very  wonderful  that  he  did  not.  He  says  that  he  was 
at  Chippewa  River,  at  the  place  of  embarkation,  and  it  appears  from 


■i  1 


.    I 


t' 


324 


Gould's  reporter. 


the  whole  scope  of  his  testimony  that  he  never  did  go  up  to  the 
higher  place  of  embarkation.  What  is  his  testimony  worth  then  ! 
Suppose  there  are  tliree  doors  to  this  Court  room,  and  Sir  Allan  Mc- 
Nab  stands  at  one  of  them,  and  he  swears  that  McLeod  is  not  in  the 
house,  because  he  did  not  enter  at  the  particular  door  where  lu^  stood. 

But,  gentlemen,  although  it  may  not  be  thought  necessary  to  go 
further  into  the  testimony  of  Sir  Allan  McNab,  still  let  us  examine  it 
a  little  further,  not  for  the  purpose  of  weakening  that  testimony,  but 
rather  to  give  you  an  idea  of  the  whole  mass.  Now,  who  is  this 
McNab  ?  VVhy,  although  he  is  of  the  peaceful  profession  of  law,  yet 
we  find  him  in  command  of  twenty-five  hundred  men,  and  what  is  a 
little  remarkable,  kept  at  bay  by  about  two  or  three  hundred.  The 
only  exploit  of  which  we  hear  as  having  been  achieved  by  the  gallant 
knight  and  his  gallant  army,  was  the  destruction  of  the  steamboat 
Caroline.  For  this  he  received  the  honor  of  knighthood.  Gentle- 
men, in  ancient  times,  it  was  customary  to  reward  the  achievement 
of  gallant  deeds  by  conferring  the  honor  of  knighthood,  together  with 
a  coat  of  arms,  and  a  crest  emblazoned,  emblematic  of  the  deed  for 
which  the  mark  of  distinction  was  conferred.  When  McNab  embla- 
zons his  crest,  let  him  take  no  emblem  of  noble  daring — no  bloody 
hand — no  shivered  spear.  No,  the  torch  of  the  midnight  incendiary 
would  be  the  fittest  emblem  to  commemorate  the  deed  on  which  his 
glory  rests.  In  the  days  of  chivalry  gallant  knights  often  swore  bii 
their  knighthood — in  reading  the  testimony  of  McNab  I  confess  1 
could  not  resist  the  impression  that  he  was  swearingyb?"  his  knighthood. 
Gentlemen,  Sir  Allan  McNab's  statements,  if  examined,  will  be  found 
to  impeach  themselves  in  various  ways.  In  reply  to  the  question, 
"  how  the  men  embarked,  whether  in  military  order  or  not,  and 
whether  they  disembarked  in  the  same  order,"  he  answers  that 
the  men  came  in  a  body,  and  went  away  in  a  body.  Now,  this  testi- 
mony is  in  contradiction  to  that  of  many  of  their  witnesses,  who  say 
that  upon  arriving  at  the  place  of  embarkation  they  waited,  some  ten 
minutes,  some  fifteen,  and  some  half  an  hour.  So  that  if  you  take 
the  testimony  of  the  witnesses  whom  they  themselves  produce,  the 
testimony  of  Sir  Allan  McNab  is  entirely  destroyed.  Some  came 
there  and  Avent  instantly  into  the  boats — so  that  those  standing  about 
had  no  opportunity  of  knowing  who  were  among  them.  McNab  tells 
you  he  did  not  see  McLeod,  but  McLeod,  hi  his  statement,  says  that  he 
rode  back  to  Chippewa,  and  went  to  McNab's  quarters  and  told  him 
the  boat  was  coming  down  from  Buffalo.  The  testimony  of  Sears, 
says  that  although  he  had  four  or  five  friends  there,  he  recognized 
only  one  or  two  of  them ;  though  he  knew  them  well,  he  did  not  re- 
cognize them  ;  this  is  sufficient  to  satisfy  you  that  in  this  declaration 
of  McNab,  he  swears  by  virtue  of  his  office  ;  it  is  more  like  a  com- 
mand of  what  ought  to  be,  than  a  statement  of  fact  that  is. 

I  will  now  call  your  attention  to  John  Harris ;  he  was  the  witness 
whom  the  commissioner  had  occasion  to  prompt  a  little ;  he  told 
him  what  other  witnesses  had  said.  He,  gentlemen,  is  the  man 
whose  testimony  seems  to  indicate  that  he  knew  all  about  the  aflair — 
that  he  v.-as  first  in  it,  and  last  out  of  it ;  he  heard  McNab  give  the 
orders,  though  McNab  says  they  were  given  privately  in  the  ear  of 


M 


*« 


MCLEOD  S   TRIAL. 


325 


ip  to  tlic 
rth  then  '. 
Allan  Mc- 
not  in  the 
ho  stood, 
ary  to  go 
3xamine  il 
nony,  but 

10  is  this 
)f  law,  yet 
what  is  a 
ed.  The 
he  gallant 
steamboat 

Gentle- 
hievement 
ether  with 
deed  for 
[ab  embla- 
no  bloody 
incendiary 
which  hn 
swore  bn 
confess  1 
nighthood. 

11  be  found 
I  question, 
■  not,  and 
swers  thai 
,  this  testi- 
s,  who  say 
1,  some  ten 
f  you  take 
oduce,  the 
5ome  came 
nding  about 
IcNab  tells 
jays  that  he 
id  told  him 

of  Sears, 
recognized 
did  not  re- 
declaration 
like  a  com- 
is. 

the  witness 
:le;  he  told 
is  the  man 
the  affair — 
fab  give  the 
in  the  ear  of 


Drew  on  the  beach,  and  yet  Harris  heard  it ;  he  says  he  was  the  last 
man  on  the  boat,  when  others  say  that  the  foolish  old  man  could 
not  keep  on  the  boat,  but  fell  overboard,  and  they  took  him  up,  and 
wrapped  him  in  a  blanket.  What  does  he  know  upon  the  subject  in 
reference  to  the  first  great  fact  1  He  says  he  did  not  know  McLeod — 
he  had  never  spoken  to  him  in  his  life — but  for  a  day  or  two  he  had 
known  him  by  sight.  He  had  never  seen  him  since.  There  is  an- 
other thing  which  this  witness  states,  and  to  which  1  beg  to  call 
your  attention.  John  Harris  says  that  a  list  of  all  the  names  was 
made  out — that  he  saw  it  at  the  time,  and  has  seen  it  since,  that 
there  is  no  mistake  ;  that  it  presents  the  names  of  all  the  officers, 
and  of  every  man  on  board.  But  where  was  it  made  out  ■  At  the 
place  of  debarkation,  at  midnight,  without  a  light  or  a  candle  ;  such 
perfectly  absurd  falsehood  would  damn  the  reputation  of  any  witness 
who  would  come  before  a  jury  and  state  it.  You  have  listened  to  a 
statement  respecting  the  disembarkation  with  the  wounded  man  ; 
and  in  the  midst  of  that  confusion  some  one  could  take  out  a  scriv- 
ener's inkhorn,  and  make  a  list  in  midnight  darkness.  It  is  the 
maddest  lie  that  ever  was  offered  before  a  jury.  And  that  is  the 
kind  of  testimony  they  expect  you  to  rely  upon.  It  appears  there  are 
four  lists:  one  is  the  list  that  McNab  talks  of;  he  thinks  that  a  list 
was  made  out  and  returned.  Another  is  spoken  of  by  Hector,  made 
out  at  Kirkpatrick's  tavern,  where  they  had  been  up  carousing  all 
night;  and  at  six  o'clock  in  the  morning,  they  undertake  to  make 
out  a  list.  Another  is  the  list  which  McCormack  had ;  he  says  ho 
was  the  deputy  who  was  engaged  in  going  about  to  gather  up  vol- 
unteers, and  he  made  a  list.  How  perfectly  impossible  it  must  have 
been  to  have  a  perfect  list  at  that  time,  while  going  about  to  pick  up 
volunteers  for  it ;  it  seems  that  they  had  not  been  previously  embo- 
died, but  were  picked  up  all  along  shore,  till  the  moment  of  embar- 
kation. How  could  they  know  who  was  upon  one  boat  and  who 
upon  another  ?  It  was  all  confusion  ;  no  man  knew,  no  man  could 
know,  who  was  in  the  expedition  at  that  time.  So  much  for  these 
boasted  lists  which  have  been  spoken  of.  And  how  much,  gentle- 
men, they  talk  of  these  lists,  as  if  they  were  official  papers,  regularly 
drawn  up  and  signed.  Can  you  bring  yourselves  to  believe,  for  one 
moment,  that  if  a  list  had  ever  been  thus  made  out,  it  would  not  have 
been  produced  here  1  That  the  whole  nation  should  be  agitated, 
even  to  the  throne,  for  the  purpose  of  releasing  a  prisoner,  and  not 
bring  forward  that  list  \  For  if  they  had  brought  an  official  docu- 
ment, made  out  by  McNab,  sent  to  the  Governor,  and  filed  in  the  ar- 
chives of  the  government,  I  would  not  press  a  conviction.  I  would 
look  upon  it  as  a  strong  evidence  that  he  was  not  there.  Before 
you  can  give  the  least  credit  to  this  statement,  you  must  be  inform- 
ed where  that  list  was  made  out,  by  whom,  and  how  made  out ; 
whether  it  was  the  mere  random  guess  of  some  one  of  those  engaged 
in  the  expedition,  who  knew  but  little  about  it,  or  whether  it  was  an 
authentic  and  official  document.  If  such  an  one  was  made  out,  why 
is  it  not  here  1  They  say  because  they  were  not  willing  to  expose 
the  persons  who  *vere  there  ;  but  I  think  this  was  an  evasion.  There 
may  have  been  two  or  three  or  four  or  five  engaged  in  that  expedi- 


hm 


;)■■  ■'    ^'      I 
•I        I      < 


.  I 


1,. 


326 


Gould's  reporter. 


tion  who  are  not  known  ;  beyond  that  number  they  are  known.  Il 
is  not,  then,  for  concealment  that  this  list  is  kept  back.  Let  ine  now- 
state  the  result  of  a  little  looking  into  these  commissions.  One  of 
the  interrogations  was  framed  to  ascertain  the  number.  Let  us 
see  if  any  too  of  them  agree  in  the  number  of  men  engaged  in 
the  expedition.  It  would  have  been  very  diflicult  to  make  out  u 
perfect  list.  Captain  Beer  says  that  sixty-five  embarked ;  Light 
says  sixty;  McCormick  says  fifty;  Cleverly  says  forty;  Gordon 
says  forty-live  ;  O'Reilly  says  fifty  ;  Hector  says  fifty-six  ;  Zealand 
says  from  fifty  to  sixty  ;  McNab  says  forty  ;  Harris  says  fifty-three, 
of  whom  forty-one,  neither  more  nor  less,  reached  the  Caroline. 
There  are  no  two  of  these  witnesses  agreeing  as  to  the  number  of 
men  in  the  expedition.  Now,  gentlemen,  we  will  take  up  the  exami- 
nation of  those  who  went  on  the  boats.  They  do  not  pretend  to 
know  any  except  those  who  went  on  their  own  boats,  that  is  the  boat 
upon  which  the  witness  went. 

To  the  15th  cross-interrogatory,  "  Did  you  know  all  who  embark- 
ed in  the  expedition!  Did  you  see  the  face  of  and  recognize  each 
one  who  went  in  the  expedition  ?" 

JVpAI  McGregor  says  :  "  I  accompanied  the  expedition.  J.  P.  Bat- 
tersby  commanded  the  boat  I  went  in.  I  forget  who  commanded  the 
other  boats.  I  believe  seven  boats  started,  and  five  reached  the  Car- 
oline. I  believe  he  was  not  in  the  boat  that  I  was  in,  or  in  any  other. 
1  did  not  see  him. 

Armour  says  :  "  I  did  not  know  all  the  persons  that  went  on  the 
expedition — though  I  did  know  about  one  half  of  them.  I  did  see 
most  of  the  faces  of  those  that  were  on  the  expedition,  and  I  recog- 
nized a  greater  part  of  them." 

Light  says — "  I  did  not  know  all  who  embarked  in  the  expedition — 
I  did  not  see  nor  recognize  the  face  of  each  one." 

McCormick  says — "  I  did  not  know  all  who  embarked  on  the  expe- 
dition, nor  did  I  see  and  recognize  the  face  of  each  one." 

Cleverly  says — "I  did  not  know  all,  I  knew  most  of  them.  I  saw 
all  the  men  that  embarked,  but  I  cannot  say  that  I  recognized  the  fea- 
tures of  each  one." 

Gordon  says — '•  I  did  not." 

O^Rcilly  says--" I  was  personally  acquainted  with  all  of  them,  or 
nearly  all — I  cannc«  swear  that  I  recognized  the  face  of  each  one  that 
went  on  the  expedition." 

Battcrshy  says — "  I  did  not  know  all  who  embarked  in  the  expedi- 
tion—I did  not  see  the  face  of  each  one  that  went  on  the  expedition." 

Zealand  says — I  did  not  know  or  recognize  all  who  were  in  the  ex- 
pedition." 

Hector  says— "I  did  not  know  all,  nor  did  I  see  the  faces  of  all." 

McNab  says — "  I  think  I  know  all  who  embarked  on  the  expedition. 
I  saw  the  faces  of  most  of  them,  and  recognized  those  whom  I  saw." 

Harris  says — "I  have  already  stated  that  many  I  knew  well,  some 
I  knew  by  sight,  and  others  I  did  not  know.  I  saw  the  whole  of  them, 
but  cannot  say  that  I  saw  all  their  faces,  or  recognized  the  whole  of  them.' 

Christopher  Beer  says — "  I  did  not  know  all,  or  recognize  the  face 
of  each  one  who  went  on  the  expedition." 

Thus  much,  gentlemen,  for  the  knowledge  of  those  men  at  the 


own.     Il 
;  me  now 
One  of 
Let  us 
Taged    in 
ke  out  a. 
1;    Light 
;  Gordon 
Zealand 
fty-three, 
Caroline. 
lUinber  of 
le  exami- 
retend  to 
s  the  boat 

)  embark- 
nize  each 

J.  P.  Bat- 
anded  the 
1  the  Car- 
iny  other. 

nt  on  the 

I  did  see 

I recog- 

pedition — 

1  the  expe- 

m.     I  saw 

d  the  fea- 


f  them,  or 
h  one  that 

le  expedi- 
pedition." 
in  the  ex- 

of  all." 
ixpedition. 
»m  I  saw." 
well,  some 
e  of  them, 
e  of  them.' 
;e  the  face 

len  at  the 


MCLEOD  S    TRIAL. 


327 


point  of  embarkation.  They  can  say  nothing  about  it  to  show,  that 
fifty  or  a  hundred  McLeods  might  not  have  been  there,  and  tiuy  not 
have  seen  or  recognized  them. 

The  point  upon  which  most  stress  is  laid  by  the  counsel  for  the  pris- 
oner is,  that  there  are  witnesses  from  each  one  of  these  boats,  and 
that  they  did  not  see  him.  If  tliat  bo  so,  il  will  go  a  great  way,  if 
you  believe  there  was  no  opportunity  for  any  one  to  go  without  their 
seeing  and  knowing  it.  It  will  have  great  weight  with  you  in  re- 
lation to  the  question,  whether  he  was  there  or  not.  In  the  first 
place,  gentlemen,  they  do  not  pretend  that  liiey  knew  all.  I  refer  you 
to  the  answers  to  the  sixteenth  interrogatory.  To  this  Robert  Ar- 
mour says ;  "  I  knew  all  but  two,  and  these  two  were  strangers  to  me." 

Light  says  that  he  did  know  all ;  that  he  had  raised  the  boats' 
crews,  but  having  no  personal  acijuaintancc  with  them,  he  cannot  saj 
that  he  recognized  each  one  of  tho^  who  were  in  his  own  boat. 

Mr.  Spencer  here  asked  if  it  was  fair  to  state  testimony  in  that 
manner  ? 

The  Court  said  counsel  had  a  right  to  state  that  which  would 
make  for  his  own  case. 

The  Attorney  General  continued.  Zealand  says  he  was  not 
personally  acquainted  with  all  who  went  in  the  same  boat  with  him. 
He  did  not  recognize  each  one,  or  speak  to  each  one  of  them.  He 
testifies  that  he  had  been  introduced  to  McLcod  and  knew  him.  In 
his  answer,  he  says,  "  I  have  known  McLcod.  I  was  not  acquainted 
with  him  in  1837.  I  knew  his  person  by  sight,  but  dirl  not  know  his 
name  until  1838."  And  in  a  subsequent  answer,  this  same  Zealand 
states  that  he  andMcLeod  were  out  the  night  before  upon  a  secret  ex- 
pedition. He  speaks  with  great  hesitation  about  McLeod's  being  in 
the  boat  with  him  on  that  occasion,  and  I  show  this  by  way  of  illustra- 
tion, that  you  may  see  how  uncertain  is  their  testimony.  He  says  "  I 
went  in  a  boat  round  Navy  Island ;  a  person  was  in  that  boat,  who  I 
think  was  McLeod,  but  I  am  not  certain  ;"  this  does  not  come  out  on 
the  direct  question,  but  upon  the  cross  interrogatories. 

Here  is  one  of  these  witnesses  who  says  that  he  went  round  Navy 
Island  the  night  before,  in  the  same  boat  with  McLeod,  and  McLeod 
says  it  was  in  the  morning  when  they  returned;  and  if  the  witness 
could  not  be  certain  in  relation  to  this  fact,  how  could  he  as  to  others? 

There  is  another  circumstance  to  show  how  little  these  statements 
are  to  be  depended  on.  To  the  seventeenth  interrogatory  "  Did  the 
same  persons  return  with  you  in  your  boat  as  embarked  with  you?"  I 
have  collated  the  answers,  and  find  that  five  boats  readied  the  Caroline. 
Captain  Beer  says  that  those  who  went  in  his  boat  came  back  in  it. 
Others  say  that  the  same  came  back,  with  certain  exception.  From 
these  statements,  it  would  appear  that  four  boats  brought  back  the 
same  number  of  persons  that  they  carried  out,  and  nine  more.  This 
leaves  one  boat  unaccounted  for.  McCormick  says  that  there  were 
eight  in  his  boat.  Here  we  find  that  four  boats  brought  back  one 
man  more  than  they  all  carried  out,  which  shows  that  there  can  be  no 
substantial  reliance  placed  upon  them,  as  to  the  facts.  In  this  dark 
night,  two  of  these  witnesses.  Light  and  Armour,  who  were  in  the 
same  boat,  give  different  statements.  Light  says  that  all  who  went 
out  with  him,  returned  with  hira;  Armour  swears  that  all  who  went 


'  .1: 

I 


.;';,    . 


it#W; 


;4||ft4 


nir 


328 


GOULD  S    REPOnXER. 


in  their  boat,  returned  in  the  same,  and  yet  Li|>ht  did  not  return  in  it. 
Again,  Harris  and  Zealand  embarked  in  the  same  boat,  conunanded 
by  Drew,  the  leader  of  the  expedition — and  Harris  said  that  all  re- 
turned in  the  boat  that  went  out  in  her.  But  Zealand  says  that  Drew 
did  not  return  in  his  own  boat,  but  came  back  in  another.  Is  there 
then  any  reliance  to  be  placed  upon  their  statements  as  to  who  were, 
and  who  were  not  in  the  boats,  except  in  a  very  general  sense?  I 
might  call  your  attention  to  the  fact  of  their  recognizing  each  other 
on  the  Caroline.  The  fact  is,  they  met  and  fought  each  other — which 
is  pretty  conclusive  proof  that  they  did  net  recognize  each  other 
there.  The  learned  gentleman  examined  with  great  minuteness 
the  evidence  of  the  persons  engaged  in  the  expedition.  Gentle- 
men, I  wish  to  call  your  attention  to  this  matter,  in  another  point 
of  view.  It  seems  that  the  number  embarked,  was  about  sixty,  of 
whom  twelve  are  called  to  give  testimony  before  you;  that  is,  one 
in  five.  In  such  an  expedition,  and  on  such  a  night,  it  would  be 
more  wonderful  if  you  could  not  find  twelve  out  of  sixty,  than  it 
would  to  find  twelve  who  could  swear  they  did  not  see  or  recognize 
particular  individuals.  Let  us  see  what  they  did  know.  Their  an- 
swers to  the  first  interrogatory  gives  the  following  result.  Three  out 
of  the  twelve  say  they  did  not  know  McLeod  at  all ;  six  of  them  say 
they  had  no  personal  acquaintance  with  him,  but  had  merely  seen  him. 
One  says  he  had  been  introduced  to  him.  Two  only  say  that  they  had 
known  him  for  some  time.  Only  two  out  of  the  twelve  knew  him  in- 
timately ! 

Remember,  they  could  have  examined  all  Canada,  if  they  chose. 
They  had  a  commission  with  them  which  enabled  them  to  examine 
any  and  every  man  ;  and  you  have  a  right  to  presume  that,  out  of  the 
whole  sixty,  but  twelve  could  be  found,  who  could  swear  that  they  did 
not  see  him.  Three  of  these  did  not  know  him  at  all,  and  six  knew 
him  but  slightly. 

Well,  gentlemen,  there  is  one  other  consideration  with  reference  to 
this  subject,  and  we  will  then  leave  this  branch  of  the  testimony. 

All  these  witnesses,  I  believe,  without  exception,  have  sworn  that 
they  were  resisted  on  the  boat :  that  they  were  fired  at.  I  suppose  I 
need  not  say  one  word  upon  this  subject.  I  presume  that  you,  and  the 
Court,  are  perfectly  satisfied  that  there  was  no  resistance — that  no  gun 
was  fired — that  those  who  were  upon  the  boat  were  unarmed  and  help- 
less, and  fled  for  their  lives;  and  yet  almost  every  one  of  these  wit- 
nesses has  sworn  that  they  were  resisted  by  those  on  the  boat.  I 
was  astonished  when  I  read  it ;  and  the  expression  occuried  to  me 
which  Sterne  has  put  into  the  mouth  of  my  uncle  Toby — "  Our  ar- 
ray swore  terribly  in  Flanders" — but  they  swore  worse  in  Canada. 

I  do  not  believe  that  respectable  men  would  come  forward,  and  de- 
liberately perjure  themselves;  but  it  is  very  certain  that  they  swore 
broadly  and  carelessly  upon  the  side  on  which  their  feelings  were  en- 
listed. 

Now,  gentlemen,  if  you  will  pardon  me  for  being  so  tedious,  in  re- 
lation to  this  evidence,  which  was  not  given  to  you  upon  the  stand, 
and  which  I  have  thought  it  necessary  to  sift  a  little,  in  summing  it  up 
before  you — I  will  ask  you  next  to  go  with  me  in  one  or  two  of  these 
boats. 


Mcleod's  trial. 


329 


irn  in  it. 
lunandcd 
at  all  re- 
:mt  Drew 
Is  there 
ho  were, 
ensc?     I 
ich  other 
r — which 
ch  other 
inuteness 
Gentle- 
lier  point 
sixty,  of 
at  is,  one 
ivoiild  be 
y,  than  it 
recognize 
Vhi'ir  an- 
Three  out 
them  say 
seen  him. 
t  they  had 
vv  him  in- 

ley  chose. 
1  examine 
out  of  the 
t  they  did 
six  knew 

ference  to 
nony. 
worn  that 
suppose  I 
)u,  and  the 
hat  no  gun 
I  and  help- 
these  wit- 
3  boat.  I 
ed  to  me 
-"  Our  ar- 
Canada. 
d,  and  de- 
hey  swore 
s  were  en- 

ous,  in  re- 

the  stand, 

ming  it  up 

o  of  these 


With  reference  to  thia  subject,  some  of  the  witnesses  say,  that  seven 
boats'  crews  embarked ;  that  five  reached  the  Caroline  and  participat- 
ed in  the  conflict.  Armour  says  that  three,  only,  reached  the  Caro- 
line. Hector  says  that  nine  boats  left.  Light  says  that  seven  or  nine 
left  the  shore  ;  which  corroborates  Drown  :  that  is,  their  own  witness 
corroborates  our  witness.  Light  also  says  that  four  of  theso  l)oat8 
reached  the  Caroline,  and  that  no  boat  returned  in  company  with  the 
boat  in  which  he  was  ;  but  Scars  says  that  five  boats  returned  toge- 
ther. Battcrsby  was  in  one  of  the  boats  that  failed,  and  he  says  that 
his  boat  and  one  other  that  failed,  returned  about  midnight.  Others 
state  that  they  came  back  at  a  little  after  daylight,  notwithstanding 
that  those  who  commanded  them  have  sworn  that  both  returned  toge- 
ther about  midnight.  How  can  you  reconcile  all  these  conflicting 
statements?  You  cannot.  You  can  only  come  to  the  conclusion  that 
in  such  darkness  and  confusion,  they  are  unable  to  state  the  facts  with 
certainty. 

Now,  gentlemen,  these  seven  boats  were  commanded  as  follows  : 

The  first,  by  Capt.  Drew,  from  which  we  have  two  witnesses,  Zea- 
land and  Harris. 

The  second,  by  Capt.  Beer,  from  which  we  have  three  witnesses, 
Beer,  Cleverly,  and  O'Reilly. 

Th(!  third  by  Capt.  Hector,  and  he  is  the  only  witness  from  that 
boat. 

The  fourth,  by  Capt  Gordon,  who  is  the  only  witness  from  his 
boat. 

The  fifth,  by  Capt.  Battersby,  from  which  we  have  two  witnesses, 
Battersby  and  McGregor. 

The  sixth,  by  Capt.  McCormick,  and  he  is  the  only  witness. 

The  seventh,  by  Capt.  Ehnsley,  from  which  boat  we  have  Light  and 
Armour. 

Now,  gentlemen,  let  us  see  if  we  can  get  a  passage  for  McLeod  on 
board  of  Capt.  Elmsley's  boat,  without  being  discovered  ?  In  order 
to  ascertain  this  matter,  let  us  turn  to  the  depositions  of  the  witnesses 
who  were  ou'board  of  this  boat.  How  much  did  Light  and  Armour 
know  of  McLeod  ?  Armour  says  that  he  had  met  him  only  once  or  twice 
before  the  29th  December,  and  knew  him  only  by  sight.  "  I  had  no 
personal  acquaintance  with  Alexander  McLeod  ;  he  was  pointed  out  to 
me  in  the  streets  of  Chippewa,"  He  is  asked  wjien  he  was  pointed  out, 
whether  before  or  after,  and  he  could  not  say  ;  he  believed  him  to  be  a 
British  subject.  Armour  says,  "  1  did  not  know  all  the  persons  who 
went  on  the  expedition ;  I  did'not  see  all ;  but  I  think  I  saw  half ;  I  recog- 
nized a  part  of  them."  Light  says,  "  I  did  not  see  or  recognize  the 
face  of  each  one  of  them  ;  I  knew  all  in  the  boat  with  me  hut  two,  who 
were  strangers  to  me."     He  does  not  speak  with  positiveness  at  all. 

Now,  may  not  McLeod  have  been  one  of  those  two  ? 

Here  Judge  Gridley  referred  the   Attorney  General  to  their  an- 
swers to  the  fifty-sixth  and  fifty-seventh  cross-interrogatories,  where. 
Light  says,  "  I   do  not  know  where  he   was ;    he  was  not  in   my 
presence." 

The  Attorney  General. — Armour  says  he  did  not  know  Mc- 
Leod by  sight.  Here  we  have  sweeping  declarations,  from  witnesses 
who  acknowledge  they  did  not  know  McLeod  by  sight.     What  effect 

42 


V( 


!;-*••■ 


»i»  I 


h  ■ 
At 


«!;•  lii 


^y 


Ml 


it 

iuiiy 

u 

330 


Gould's  reporter. 


can  such  declarations  have.  Arinour^s  answer  to  the  same  question 
aa  that  put  to  Light  is,  that  he  did  not  thiuk  McLcod  was  on  the 
beach  ;  he  did  not  come  within  his  view.  Light  says  that  when  they 
pushed  oir,  they  pulled  two  oars  ;  that  he  was  on  the  boat  which 
Elmslcy  commanded  ;  that  he  saw  all  the  persons  who  were  in  that 
boat,  but  did  not  see  Alexander  McLeod  that  night.  He  saw  all,  but 
McLeod  was  not  one  of  them.  In  the  cross-interrogatories,  1 
have  (juestioned  him  as  to  his  means  of  knowledge.  He  says  he  did 
not  know  McLeod  by  sight ;  he  did  not  recognize  and  speak  to  all 
who  were  in  his  boat.  When  they  are  inquired  of,  and  say  they  re- 
cognized all  but  two,  how  strong  the  suspicion  that  one  of  those  two 
might  have  been  the  prisoner.  When  they  have  said  that  they  did 
not  recognize  all,  and  did  not  know  McLcod,  I  ask  if  there  is  not 
room  enough  left  in  Elmsfey's  boat  for  McLeod,  without  contradicting 
these  witnesses?  And  again  I  ask,  where  ia  Elmsley?  Why  is  he 
not  here  to  testify  ? 

We  will  now  pass  to  Gordon's  boat ;  and  Gordon,  you  will  recol- 
lect, is  the  only  witness  on  board  his  own  boat. 

Gordon  says,  "I  knew  him,  but  had  no  personal  acquaintance  with 
him."  "  I  think  he  was  once  a  passenger  on  board  a  steamboat  which 
1  commanded.  I  cannot  say  positively,  that  I  saw  him  more  than 
once." 

And  yet  gentlemen,  this  is  the  degree  of  knowledge  possessed  by 
that  individual,  by  which  to  discover  him  in  the  black  darkness  of 
midnight.  Now  let  us  turn  to  see  how  many  he  knew  on  board  that 
boat.  Gordon  says  I  did  not  know  all  in  the  same  boat  with  me,  I 
did  not  recognize  each  one,  nor  did  I  speak  to  each  individual.  This 
is  the  whole  that  yon  have,  to  exclude  him  from  Gordon's  boat.  He 
did  not  see  or  recognize  all  that  were  on  board  his  boat.  Here  is 
the  testimony  of  a  man  who  had  seen  him  but  once  before,  and  who 
says  he  did  not  recognize  all  who  were  on  board  of  his  boat.  But 
gentlemen,  are  you  to  throw  twelve  men  into  the  position  of  black 
perjurers,  on  such  a  statement.  If,  then,  gentlemen,  there  were  room 
enough  in  Gordon's  boat,  it  is  enough,  and  the  whole  that  follows  is 
valueless.  Now,  if  there  is  one  boat  in  which  the  testimony  is  not 
such  as  to  render  it  improbable  that  he  was  there,  it  is  precisely  the 
same  as  if  all  were  left  open.  One  is  enough,  for  he  could  only  have 
gone  in  one  at  a  time.  If  there  is  room  enough  in  Gordon's  boat 
without  contradicting  Gordon,  it  is  enough ;  and  the  whole  mass  of 
testimony  as  to  the  alibi  falls  to  the  ground,  and  is  utterly  valueless. 

Gentlemen,  I  fear  I  have  fatigued  you  too  long  with  this  part  of  the 
testimony,  and  I  take  my  leave  of  it. 

Here  Mr.  Spencer  interrupted  the  Attorney  General,  but  the  Court 
interposed  and  read  from  the  testimony  of  John  Gordon,  as  follows  : 
"  I  know  Alexander  McLeod ;  I  have  no  particular  acquaintance  with 
him  ;  I  think  at  the  time  I  saw  him,  he  was  a  passenger  on  board  a 
steamboat  which  I  commanded.  I  believe  him  to  be  a  British  sub- 
ject. I  recollect  the  time  of  the  destruction  of  the  Caroline ;  I  was 
in  Chippewa,  and  was  on  the  beach  half  an  hour  before  the  departure 
of  the  boats.  He  was  not  in  my  boat,  he  was  not  in  my  presence.  I 
saw  all  the  persons  in  the  boat  t  went  in,  and  I  am  satisiied  that  Mc- 
Leod was  not  one  of  them. 


MCLEOD  S  TRIAL. 


331 


ic  question 
an  on  the 
when  they 
)out  which 
ere  in  that 
aw  all,  but 
gatories,  I 
ays  he  did 
peak  to  all 
,y  they  re- 
those  two 
t  they  did 
here  is  not 
ntradicting 
Why  is  he 

will   recol- 

itance  with 
iboat  which 
more  than 

issessed  by 
larkness   of 

board  that 
nth  me.  I 
lual.     This 

boat.  He 
t.  Here  is 
e,  and  who 

boat.  But 
m  of  black 

were  room 
t  follows  is 
nony  is  not 
ecisely  the 
1  only  have 
rdon's  boat 
le  mass  of 
'  valueless. 

part  of  the 

it  the  Court 
as  follows : 
ntance  with 
on  board  a 
Jritish  sub- 
line ;  I  was 
e  departure 
resence.  I 
ed  that  Mc- 


Now,  gentlemen  of  the  jury,  let  us  look  into  the  teflliniony  of  those 
witnoHses  wlu)  have  been  presented  to  you,  and  have  teHlilled  ft)r  the 
jiurpose  of  satisfying  you  that  the  prisoner  was  at  the  house  of  Mr. 
Morrison  at  Stamford,  five  or  six  miles  from  Chij)|)ewa.  I  confess, 
gentlemen  of  the  jury,  to  my  mind  a  shade  is  cast  o\er  the  testimony 
bearing  on  that  point,  by  the  considerations  to  which  1  have  before  re- 
ferred when  I  called  your  attention  to  the  remarks  t)f  a  writer  on  the 
defence  of  nlil)i.  When  they  decide  on  making  this  defence,  they  se- 
lect the  place  where  they  will  set  up  the  ulihi,  and  they  have  the  whole 
world  to  select  from;  and  you  will  observe  where  the  prisoner  makes 
that  selection.  If  he  declared  at  the  time  he  was  among  his  associ- 
ates — if  he  placed  himself  in  some  position  where  it  is  manifest  he 
has  some  control  over  those  around  him,  it  is  a  matter  which  a  Jury 
should  carefully  consider.  The  prisoner  at  the  bar  locates  himself  in 
a  family  over  which  the  testimony  shows  he  had  obtained  a  too  fatal 
inlluencc — or  over  one  at  least  of  its  members.  Now  if  it  appear  that 
he  had  a  control  over  that  family  and  its  movements,  their  testimony 
when  brought  here  to  save  his  life,  must  be  cautiously  received.  If 
it  appears,  gentlemen  of  the  jury,  that  he  bears  a  relation,  whether  le- 
gitimate or  illegitimate,  to  tliat  family,  and  it  is  shown  that  she  who 
lived  with  him  as  his  wife,  resides  with  that  family  as  the  daughter  of 
Mr.  Morrison,  it  is  a  circumstance  to  which  you  will  not  shut  your 
eyes.  There  is  another  consideration  which  you  will  legitimately 
and  properly  take  into  your  view.  When  the  prisoner  went  to  that 
house,  the  question  will  occur  to  you,  what  did  he  go  there  for?  Men 
do  not  act  without  motive.  And  again  review  his  course.  He  started 
on  Thursday  to  go  to  Niagara  on  business  ;  he  got  to  Chippewa  ;  he 
was  there  on  the  afternoon  that  the  Caroline  came  down  ;  he  rested 
in  the  afternoon,  and  at  night,  a  witness  says,  he  started  in  the  wagon 
with  Press  again  ifrom  Chippewa.  Press  got  home  about  nine  or  tea 
o'clock  ;  but  McLeod  stopped  at  this  house.  Now,  gentlemen,  look 
if  there  is  any  motive  for  going  to  Morrison's  house  that  night.  There 
are  two  witnesses,  gentlemen  of  the  jury,  who  have  sworn  to  you 
that  the  prisoner  was  at  the  house  of  Mr.  Morrison  during  that  night. 
Mr.  and  Mrs.  Morrison  both  say  they  sat  up  until  twelve  o'clock  with 
tiie  prisoner,  whose  guilt  is  utterly  inconsistent  with  the  truth  of  that 
statement — and  they  are  the  only  witnesses  presented  before  you 
whose  statement  is  inconsistent  with  the  guilt  of  the  prisoner.  If  he 
had  been  there  at  twelve  o'clock  that  night,  he  could  not  have  been 
present  at  the  destruction  of  the  Caroline.  But  what  the  rest  say 
may  be  true,  and  yet  he  may  have  been  present  at  the  destruction  of 
the  boat.  I  do  not  say  that  if  McLeod  was  not  at  that  house  at  twelve 
o'clock,  that  the  witnesses  are  perjured  ;  far  from  it.  I  only  say  they 
have  mistaken  one  night  for  another.  They  may  have  added  some 
circumstances — I  fear  they  have.  The  foct  that  he  staid  there  and 
had  done  so  repeatedly,  they  have  disclosed ;  that  he  was  there  on 
that  night,  is  what  no  human  being  can  testify  to,  three  or  four  years 
afterwards.  Neither  you  nor  I  could  testify  whether  a  fact  which 
took  place  in  1828, '29  or  '30,  happened  on  a  particular  day;  we 
might  say  al)out  what  time,  whether  Sunday  or  the  day  after  Sunday  ; 
but  to  swear  to  a  particular  day  of  the  month,  is  what  none  can  do  af- 
ter that  lapse  of  time. 


.1  '  ■  i 


'^ 


V„  .  f 


332 


(joiild's  reporter. 


Tlic  tCHtinioiiy  of  f!a|»tairi  Morrinon  has  born  l)cforo  taken,  nnA  to 
Mint  I  irinsi  now  rffcr  yon. 

Hi-  thi'ii  statcil  sdoif  iliiiins  which  he  docs  not  now  rrcolU'ct ;  and 
ho  rcoollccls  now  soinr  thin^rs  of  which  ho  had  then  no  kn  nvlrdjfo. 
Tlic  Icarncil  jr('nth'incn  here  read  the  testimony  of  i\Ir.  Morri-^on, 
which  waH  talien  Ix'foro  Sijnire  Bi'll,  in  which  he  said  he  thouijht  it 
waH  near  eleven  o'ciocU,  when  (Joloncd  ('ameron  called  at  his  gate; 
on  Jiis  examination  in  court,  he  fixed  the  honr  at  eight. 

lie,  Mr.  Morrison,  now  recollects,  that  McLcod  had  two  horses, 
for  when  this  new  testimony  of  I'ress  came  out,  there  was  a  diffi- 
culty.  The  testimony  of  I'ress  went  to  show,  that  he  had  no  horse 
with  him.  It  then  became  necessary  to  vary  this  a  little.  I  will  not 
say  it  was  by  desinjn.  Then,  he  was  represented  us  coming  on  horse- 
hack — that  the  witness  saw  the  horse  m  the  evening  and  in  the 
morning.  Now,  he  siiys  that  he  had  two  horses  there.  One  which 
he  rode,  and  the  other  in  the  stable.  And  he  has  here  said,  that  he 
saw  his  horse  in  the  stable  at  night  and  the  next  morning — though 
he  does  not  say  that  he  had  two  liorscs,  and  the  implication  is,  that 
he  had  only  one  ;  for  you  see,  that  the  testimony  would  have  no 
applicatir)n  if  he  had  two  horses.  Mr.  Morrison  again  says,  that  he 
saw  McLcod  in  the  morning,  and  that  he  was  walking  in  front  of  the 
hous(!,  when  he  informed  him  of  the  destruction  of  tlie  Caroline. 
Now,  it  seems  that  it  was  in  the  house.  McLeod  might  have  got  up  and 
gone  out.  He  never  stated  that  he  was  not  out  of  the  house.  He 
thinks  he  had  never  told  any  one  so,  or  had  any  conversation  upon 
this  subject.  He  also  stated,  that  he  had  not  heard  previously 
that  the  steamboat  Caroline  was  coming  down.  Now  he  says,  he 
had  previously  heard  it.  I  have  a  distinct  recollection  of  putting  the 
question,  and  of  his  answering.  He  first  stated,  that  it  was  dark 
when  McLeod  came,  and  that  he  did  not  see  his  horse  ;  but  after- 
wards adds,  that  he,  the  defendant,  generally  kept  a  horse  there. 
You  perceive,  therefore.  Gentlemen  of  the  Jury,  that  the  statements 
now  made,  differ  somewhat  from  the  statements  at  first  made.  It 
will  have  its  weight  with  you,  as  to  the  infirmity  of  this  witness's 
recollection. 

There  is  another  circumstance  which  goes  to  impeach  his  testi- 
mony, with  respect  to  McLeod's  being  there  on  Christmas  night. 
You  will  correct  me  if  I  am  wrong.  If  it  was  Christmas  eve, 
xMcLeod  contradicts  him.  But  if  he  said  Chrisii.ias  nicht,  then  there 
IS  no  contradiction. 

There  is  another  fact,  which  is  sufficient  to  do  away  any  great 
weight  that  the  testimony  would  otherwise  have.  Each  and  all  of 
them — Mr.  Morrison,  Mrs.  Morrison,  Miss  Morrison,  and  Archy, 
state,  that  he  staid  at  their  house  on  the  second  day  of  January. 
They  recollect  it  well,  for  a  son  of  Mr.  Morrison  was  at  home,  and 
they  had  to  remove  him  out  of  the  parlor  to  make  room  for  Mr. 
McLeod.  If  there  is  a  doubt,  you  are  to  take  it  in  favor  of  the 
prisoner.  There  is  no  question  about  the  room.  But  now,  for  the 
second  of  January.  He  and  his  wife,  and  his  daughter  and  son,  all 
say  that  they  are  clear  and  positive  that  he  was  there  on  the  second 


I,  nni\  to 

c'Pt ;  antl 

Ii>n'H<Mi, 
li()Vii;lil  it 
\\\»  gate  ; 

0  horsps, 
ns  n  i\'\iV\- 

no  horse 

1  will  not 
on  horse- 
incl  in  the 
no  wlii(!h 
,  that   he 
[ — thouph 
n   is,  that 
I  have  no 
s,  that  he 
■onl  oC  the 
1  Caroline, 
got  up  and 
DUse.     He 
ition  npon 
previously 
e  says,  he 
)utting  the 

was  tlark 
but  aftcr- 

»rsc  there. 

statements 
made.     It 

;  witness's 

1  his  testi- 
mas  night. 
tmas  eve, 
then  there 

any  great 
and  all  of 
nd  Archy, 
f  January, 
home,  and 
m  for  Mr. 
iror  of  the 
)w,  for  the 
nd  son,  all 
the  second 


MCLEOD  II   TIIIAI,. 


333 


"t 


day  of  January.     Tiiat  the  Hon  was  at  home,  and  they  cannot  .le  mis- 
taltcn. 

Now  the  prisoner  has  taKcn  the  testimony  of  didprfMil  individunN, 
and  amonrr  others,  one  says,  I  know  Alexander  .Mcliood,  and  1  know 
that  he  arrived  at  the  North  American  hold,  in  tin-  city  of  Toronto, 
on  the  thirty-first  of  Decendicr,  is;n,  and  several  ttthers  ;  and  that 
he  remained  at  that  hotel  until  Wednesday,  the  .'M   of  January,  IS.'JS. 

A<rain,  1  say,  I  do  not  suppose  that  thtjy  are  all  perjured,  though  it 
nn\kes  nothing  in  favor  of  the  prisoner.  It  is  to  sIm)W  you  that  they 
are  all  mistaken  in  that  fact,  that  1  speak  of  it,  and  that  they  might  as 
easily  he  mistaken  in  this.  They  have  staled  positively,  that  he  staid 
there  on  the  sec(Mid  of  Jainiary,  atid  were  all  mistaken  about  it 
Why  may  they  not  then  as  easily  be  mistaken  when  they  say  that 
he  staid  there  on  the  twenty-ninth  of  December  T  May  it  not  well 
be  that  they  have  cord'ounded  the  times  !  Does  not  this  whoN- 
testimony  show  confusion  and  misreeollection,  which  go  to  destroy 
the  whole  weight  of  the  testimony  which  they  have  brought  ] 

We  will  pass  to  the  testimony  of  .Mrs.  Afurriwn.  Her  statement 
is  different  from  the  others,  though  she  relates  the  same  circumstan- 
ces and  is  equally  positive  as  to  his  being  there  on  the  second  of 
Janwtri/,  as  on  the  twenty-ninth  of  Dtjceinber.  And  in  that,  we  have 
already  shown,  that  she  was  mistaken.  She  states  that  McLeod 
cLunc  there  with  a  horse  in  the  evening,  and  that  Col.  Cameron  of 
Toronto  brought  the  news  of  the  destruction  of  the  Caroline,  in  the 
morning,  and  it  seems  that  McLeod  remained  until  after  breakfast, 
and  wetit  away  between  nine  and  ten  o'clock.  That  she  had  knctwn 
McLeod  for  Jive  years.  That  he  came  and  brought  a  horse.  That 
McLeod  had  staid  there  one  night  before.  Mrs.  Alorrison  thought  it 
was  Christmas  evening.  That  he  had  spent  Christmas  day  at  wit- 
ness's house,  and  never  had  staid  there  at  any  other  time  before  or 
since.     Here,  she  swears  positively  that  he  1  ad. 

She  cannot  say  whether  McLeod  was  married  to  the  daughter  of 
Captain  Morrison  or  not.  She  now  recollects  that  he  staid  there  on 
the  second  night  of  January  ;  to  this  she  swears  positively,  al- 
though the  fact  is  impossible,  and  therefore  it  destroys  her  testi- 
mony. 

Take  these  two  then,  and  strike  them  out — the  daughter  says 
that  she  retired  to  bed  at  nine  or  ten  o'clock  in  the  evening.  Now 
the  expedition  could  not  have  left  Chippewa  until  eleven  o'clock  that 
night,  for  it  seemed  it  was  after  twelve  when  they  reached  the  boat  : 
for  they  had  set  their  twelve  o'clock  watch,  and  they  might  have 
been  occupied  an  hour  in  crossing  the  river.  When  they  started  it 
may  have  been  eleven  o'clock.  He  may  therefoi-e  have  left  Morri- 
son's after  the  daughter  had  retired  ;  but  if  he  was  at  Morrison's  at 
twelve  o'clock  he  certainly  was  not  in  the  expedition  ;  it  is  physi- 
cally impossible.  This  is  merely  the  testimony  of  Captain  Morrison 
and  his  wife.  Now,  as  to  the  testimony  of  the  daughter,  it  is  impor- 
tant in  some  measure,  as  regards  the  Caroline  being  engaged  in 
the  service  of  the  Navy  Islanders.  She  says  she  is  quite  positive 
that  she  heard  of  the  Caroline  being  engaged  in  carrying  arms  and 
munitions  of  war ;  and  she  is  sure  that  McLeod  staid  at  her  father's 


•J    , 


r   • 


H4  '» 


{' 


'■\ 


i'lHili!'! 


.1 


334. 


gould's  reporter. 


facts 


house  on  the  night  ol  the  second  ot  January,  which  tacts  are  incon- 
sistent with  each  other.  She  could  not  have  heard  this  except  the 
intelligence  had  been  brought  by  McLeod  himself.  She  says  she 
had  heard  it  two  or  three  days  before  ;  this  leaves  the  question  open 
to  the  implication  which  you  cannot  resist ;  that  McLeod  was  there, 
but  not  on  the  twenty-ninth  day  of  December,  though  perhaps  he 
was  there  on  the  night  of  the  thirtieth. 

The  testimony  of  Archibald  is  immaterial,  except  that  he  states 
that  Col.  Cameron  stopped  there  at  the  same  time,  and  that  McLeod 
came  on  horse-back.  First,  he  shows  that  Cameron  came  there  ;  but  he 
does  not  know  whether  it  was  before  or  after  the  destruction  of  the 
Caroline,  and  that  McLeod  came  on  horse-back,  for  he  recollects 
taking  the  horse,  and  taking  the  saddle  off  and  putting  the  horse 
away. 

Now,  gentlemen,  to  sustain  and  bolster  up  this  testimony,  several 
persons  have  been  brought.  Mr.  Press  tells  you  that  he  was  at 
Chippewa  the  day  before  the  burning;  that  he  was  in  a  waggon; 
that  he  went  to  carry  up  two  passengers  ;  that  he  was  spoken  to  by 
McLeod  to  take  him  to  Niagara,  where  McLeod  resided.  He  made 
one  or  two  attempts  to  start  in  the  course  of  the  afternoon,  but  was 
interrupted.  Press  says  positively  that  this  was  the  day  before  the 
burning  of  the  Caroline,  because  he  finds  on  his  cash  book,  the  entry 
of  five  dollars  received  for  carrying  these  men.  He  says  he  has  no 
recollection  of  making  the  entry ;  he  went  once  to  Chippewa,  and 
but  once,  and  he  infers  that  it  was  the  twenty-ninth.  He  was  asked 
whether  it  was  immediately  after  he  returned  that  he  made  the  en- 
try, or  whether  it  was  on  some  subsequent  day.  As  to  this  he  had 
no  recollection ;  you  are  to  determine  what  weight  to  place  upon  it. 
The  time  that  Press  brought  McLeod  to  Morrison's  we  say  was  not 
the  time  that  the  Morrisons  speak  of.  He  came  twice,  but  when  he 
came  with  Press  was  not  the  time  that  he  staid  all  night,  for  they 
all  testified  that  he  then  came  with  a  horse,  and  Press  says  that  he 
does  not  think  he  had  a  horse  when  he  rode  with  him  ;  if  he  had  a 
horse  Press  must  have  known  it.  You  must  suppose  then  that  there 
were  two  occasions.  Once  he  came  on  horse-back  when  Archy 
took  the  horse  and  put  him  in  the  stable  ;  and  once  he  came  in 
Press's  waggon,  leaving  Chippewa  at  five  or  six  o  clock,  and  did  not 
stay  all  night ;  and  where  he  was,  remains  to  be  ascertained. 

Press  has  said  that  there  was  time  enough  for  him  to  have  return- 
ed twice  before  the  expedition  started.  The  proof  of  Press  and  Mor- 
rison shows  that  it  was  not  the  time  he  staid  all  night,  for  at  that  time 
he  came  at  such  an  hour,  that  Press  could  drive  twelve  miles  after 
he  left  Morrison's.  He  left  Chippewa  so  that  he  could  go  eighteen 
miles  and  reach  home  at  ten  o'clock  at  night.  Now,  how  many 
miles  will  a  horse  make  over  very  muddy  roads  with  a  waggon  1  My 
own  experience  has  never  carried  me  beyond  what  would  have  re- 
quired six  hours  to  go  from  Chippewa  to  Niagara.  At  what  time, 
then,  must  he  have  started  1  He  says  it  was  after  dark.  Let  us  take 
it  to  be  after  dark,  then — let  them  start  at  five  o'clock,  and  take  two 
hours  to  get  to  Stamford  ;  be  had  a  horse  in  the  stable  there,  and 
what  had  he  to  do  but  to  take  his  horse  and  ride  back  again  1    There 


MCLEOD'S   TRIAL. 


335 


irc  incon- 
xccpt  the 
says  she 
ition  open 
was  there, 
jrhaps  he 

he  states 

it  McLeod 

>re ;  but  he 

tioii  of  the 

recollects 

the  horse 

ny,  several 
he  was  at 
I  waggon ; 
oken  to  by 
He  made 
m,  but  was 
before  the 
:,  the  entry 
s  he  has  no 
ppewa,  and 
was  asked 
ade  the  en- 
this  he  had 
,ce  upon  it. 
ay  was  not 
ut  when  he 
it,  for  they 
lys  that  he 
f  he  had  a 
1  that  there 
hen  Archy 
le  came  in 
md  did  not 
led. 

ave  return- 
ss  and  Mor- 
it  that  time 
miles  after 
ro  eighteen 
how  many 
^gonl  My 
I  have  re- 
Avhat  time, 
Let  us  take 
d  take  two 
there,   and 
linl   There 


was  an  object  on  the  part  of  McLeod  not  to  be  known  in  this  trans- 
action. What  that  object  was,  has  not  been  fully  disclosed.  There 
appears  to  be  this,  that  McLeod,  on  that  night,  chose  not  to  be 
known.  It  was  an  experiment,  a  secret  matter  not  openly  counte- 
nanced. It  was  not  known  how  the  Government  would  consider  it  ; 
it  was  of  a  rash  character  ;  and  one  engaged,  like  McLeod,  in  public 
business,  might  have  been  greatly  injured  in  his  affairs.  There 
were,  therefore,  grave  reasons  why,  in  the  firr,t  instance,  he  might 
not  choose  to  be  known  in  this  transaction.  We  see  that  he  was  par- 
ticularly cautious  to  say  to  Davis  and  Parke — "  Order  my  horse,  I 
shall  have  to  go  to  Niagara."  These  same  persons  state,  however, 
that  after  thus  saying,  in  this  public  manner,  that  he  was  going  to 
Niagara,  they  both  saw  him  afterwsirds  the  same  evening  at  Chippe 
wa.  This  only  shows  that  for  some  reason  he  had  a  motive  for  choos- 
ing to  throw  a  disguise  over  this  affair  ;  and  not  to  have  his  move- 
ments known.  You  see  then  why  he  might  have  rode  with  Press  in 
his  waggon,  and  have  taken  his  horse  and  rode  back  again  from  Mor- 
rison's in  time  to  engage  in  this  expedition.  I  am  not  now  stating 
that  these  are  matters  which  did  actually  take  place,  but  I  am  stating 
that  they  are  matters  which  might  have  taken  place,  according  to  the 
testimony  of  their  own  witnesses,  and  must  have  taken  place  ac- 
cording to  the  testimony  of  Avelve  men  under  oath,  produced  by  the 
prosecution.  Yet  you  are  called  on  to  say  that  they  are  all  per- 
jured. But  you  never  will  do  that,  while  you  can  find  any  other 
way  for  him  to  go  down,  for  the  purpose  of  disguising  his  move- 
ments, and  having  the  means  and  time  to  come  back  again. 
Rather  than  to  suppose  that  these  men  have  all  perjured  themselves, 
you  are  to  suppose  any  thing  which  is  not  physically  impossible  in 
itself.  This  supposition  also  disposes  of  the  testimony  of  Mr.  Stock- 
ing. Take  the  supposition  that  Mr.  Press  has  stated  every  thing  per- 
fectly correct — for  this  is  all  that  they  both  prove — that  he  started  to 
go  down  at  about  five  or  six  o'clock ;  he  might  have  been  back  at 
eleven  to  engage  in  the  enterprise,  as  our  witnesses  have  said  they 
saw  him. 

You  have  a  painful  and  solemn  duty  to  perform,  and  you  will  not 
blame  me  for  placing  all  the  facts  before  you,  that  now  and  hereafter 
there  may  be  no  relenting  that  you  may  have  given  a  false  verdict. 
You  will,  therefore,  be  patient  with  me,  if  I  am  longer  than  I  other- 
wise should  be. 

As  to  the  deposition  of  Colonel  Cameron,  we  have  had  no  oppor- 
tunity of  cross-examining  him.  I  have  no  doubt  he  is  a  very  worthy 
and  good  man,  of  about  sixty  years  of  age.  I  have  no  doubt  he  has 
stated  what  he  believes  to  be  correct,  that,  on  the  morning  after  the 
destruction  of  the  Caroline,  about  nine  o'clock,  he  stopped  at  Mr. 
Morrison's,  and  that  Mr.  Morrison  came  down  to  his  gate,  that  he 
then  and  there  held  a  conversation  with  him  of  about  five  minutes, 
in  which  he  may  have  mentioned  the  destruction  of  the  Caro- 
line. Now  let  us  see  the  statement  of  Morrison  as  to  this  man. 
He  says  Mr.  Cameron  sent  for  him  to  come  down  to  the  gate.  He 
then  told  him  that  an  American  steamboat  had  been  burnt.  The  old 
man  was  so  much  engaged  in  the  matter  that  he  had  gone  down  from 


1 


i 


4  ':| 


336 


GOULD  S   REPORTER, 


the  Falls  to  the  eddies  of  the  river,  and  picked  up  a  fragment  of  the 
boat.  He  gives  to  Mr.  Morrison  a  part  of  it.  His  whole  lieart  is 
full  of  the  subject.  Alas!  the  old  man  has  now  forgotten  that  he 
even  mentioned  that  subject.  Not  a  word  about  the  fragment.  If 
I  could  have  had  an  opportunity  to  examine  this  good  old  man,  if  I 
could  have  put  a  cross-interrogatory — do  you  believe,  if  the  old  gen- 
tleman had  been  asked,  "  Did  you  not  bring  a  fragment  of  the  Caro- 
line"— he  would  have  answered  '  YesV  We  know  the  answer  would 
have  been  '  No' — because  it  is  not  here  ;  it  is  a  most  conclusive  cir- 
cumstance, that  the  prisoner's  counsel  did  not  put  the  question,  or 
omitted  to  note  his  answer.  Captain  Morrison  says  it  was  about  eight 
o'clock ;  he  says  that  it  was  about  nine  o'clock  ;  that  he  left  Chip- 
pewa in  the  morning,  and  had  travelled  six  miles  over  a  very  bad 
road,  such  that  a  horse  had  to  walk  ;  and  if  he  was  there  at  eight,  he 
must  have  started  at  six.  Then  this  old  gentleman  must  go  from  the 
high  road  down  to  the  brink  of  the  river  to  pick  up  this  fragment.  It 
is  very  extraordinary  that  they  did  not  question  the  old  gentleman, 
to  see  how  fai  he  sustained  this  account.  If  both  the  isolated  facts 
are  true  in  themselves,  it  only  wants  some  link  to  be  forged  to  con- 
nect them  together.  It  is  a  trifling  difficulty  to  be  detected,  but 
when  it  is  brought  to  bear  against  the  oath  of  innocent  men,  unitn- 
peached,  it  should  have  but  very  little  \veight. 

I  shall  not  detain  you,  to  dwell  upon  the  testimony  of  Gilkinson 
and  Judge  McLean.     It  is  not  for  me  to  make  out  that  McLeod  was 
not  there  on  the  road  at  ten  or  eleven  o'clock,  because  there  was 
time  enough  for  him  to  have  travelled  back  and  forward  four  or  five 
times   after  the   expedition — but    that    it   was   the    day   after   the 
one    that    he  speaks  of;    that  it    was  on  Sunday  that  he  rode  up 
the  river.     Smith  said  that  he  saw  a  group-of  two  or  three  persons 
on  Sunday,  which  is  not  inconsistent  with  the  case  made  out  by  the 
prosecution.     But  if  deemed  essential,  I  would  ask  where  is  Mr.  Foote, 
who  has  been  subpoenaed  by  the  prisoner  and  has  been  here  present  { 
Considering  they  had  to  combat  the  oaths  of  twelve  men  they  had  not 
such  a  mass  of  testimony  as  to  render  it  a  work  of  supererogation. 
Now  I  have  said  all  tha,t  I  propose  to  say  in  relation  to  those  wit- 
nesses who  are  brought  to  confirm  the  testimony  of  the  Morrisons. 
What  they  state  may  be  true,  and  yet  what  the  Morrisons  state  may 
be  false.     They  state  circumstances  which  are  consistent  with  the 
Morrisons  ;  but  further  than  that,  their  testimony  is  rebutted  by  all 
those  who  say  that  they  saw  McLeod  at  Chippewa  at  ten  o'clock,  and 
between  eight  and  nine  the  previous  evening.     They  testify  directly 
in   opposition  to  the  Morrison  family,  for  they  say  that  they  saw 
McLeod  there  in  Chippewa  at  sunrise  or  thereabouts,  which  is  incon- 
sistent with  what  has  been  testified  by  the  Morrisons.     In  addition 
to  this  we  have  produced  a  witness  here  to  impeach  Morrison  by 
his  own  declaration  in  other  situations.     It  is  Defield.     Thej'  pro- 
duced a  witness   to    impeach   Defield,   and  we  another  to   sustain 
him.     They  produce  a  man  who  says  his  reputation  foi  truth  and 
veracity  is  not  good,  and  he  cites  an  instance  where  he  heard  several 
gentlemen  commenting  upon  an  oath  of  Defield,  in  which  he  stated  that 
Morrison  told  him  that  he  could  not  say  whether  it  was  that  or 


!:isi 


MCLEOD  S   TRIAL. 


337 


|:,,.  y 


enl  ot  the 
3  heart  is 
(1  that  he 
ment.     If 

man,  if   I 
i  old  gen- 

the  Caro- 
wer  would 
ilusive  cir- 
uestion,  or 
ibout  eight 
;  left  Chip- 
a  very  bad 
at  eight,  he 
ro  from  the 
gment.     It 
gentleman, 
slated  facts 
<red  to  con- 
lected,   but 
men,  unim- 

f  Gilkinson 
IcLeod  was 
;  there  was 
four  or  five. 
i   after   the 
he  rode  up 
rce  persons 
out  by  the 
s  Mr.  Foote, 
•re  present  ? 
hey  had  not 
;rerogation. 
those  wit- 
Morrisons. 
s  state  may 
nt  with  the 
utted  by  all 
j'clock,  and 
tlfy  directly 
they  saw 
ch  is  incon- 
In  addition 
VIorrison  by 
They  pro- 
to   sustain 
)i  truth  and 
eard  seVeral 
e  stated  that 
vas  that  or 


some  othvr  evening  that  McLeod  stayed  .it  his  house,  and  therefore 
Defield  must  be  a  bad  man.  We  have  produced  several  who  declare 
that  they  know  him,  and  know  nothing  against  his  truth  and  veracity. 
He  says  Morrison  told  him,  that  he  could  not  swear  it  was  the 
twenty-ninth — it  was  some  night  near  then,  and  he  was  in  the  habit 
of  being  there  frequently.  He  swears  that  he  heard  Morrison,  at 
his  own  house  and  iii  presence  of  his  own  wife,  say,  that  he  hoped 
the  Americans  wouid  get  possession  of  McLeod  and  punish  him  for 
the  part  he  had  taken  in  the  Caroline  alFair.  The  declaration  of 
Hamilton,  I  trust,  does  not  impeach  his  general  veracity,  sustained 
as  it  is  by  Robinson,  Dyke,  and  others. 

Now,  gentlemen  of  the  Jury,  I  am  approaching  to  a  close.  I  have 
but  little  more  to  say  to  you.  1  have  but  one  more  branch  of  the 
subject  to  place  before  you.  It  is  the  statement  of  McLeod  himself — 
the  first  statement  which  he  made  when  called  upon  before  Justice 
Bell.  This  is  a  statement  which  a  man  has  a  right  to  make,  but  is 
not  compelled  to  make. 

He  says,  "that  on  the  Christmas  eve  before  the  Caroline  was 
burnt  he  was  jit  Buffalo,  and  there  learned  that  the  steamboat  Caro- 
line was  then  preparing  to  enter  into  the  Navy  Island  service  ;  that 
ahe  was  then  lying  at  or  near  the  mouth  of  Buffalo  creek  ;  that  he 
(defendant)  the  next  day  went  from  Buffalo  to  Chippewa,  Upper 
Ci .:•  'ida,  and  there  gave  information  that  tiie  Caroline  was  fitting  out 
^nr  Vavy  Island  service,  and  on  the  next  day,  which  was  Tues- 

u  . ,  .':•  nade  affidavit  to  it.  And  on  the  night  previous  to  the  burn- 
ing ui  the  Caroline,  defendant,  on  his  way  to  Niagara,  stopped  at  the 
Pavilion,  Niaga'ra  Falls,  and  there  learned  that  the  Caroline  either 
had  left  or  was  about  to  leave  Buffalo,  to  come  down  to  Navy 
Island ;  and  then  defendant  returned  to  Chippewa,  and  called  on 
Colonel  McNab,  and  informed  him  of  the  fact ;  and  McNab  said  he 
could  not  act  on  the  fact  that  the  Caroline  had  merely  come  down, 
and  could  do  nothing ;  defendant  and  Captain  Philip  Graham  then 
got  a  boat  between  five  and  six  o'clock,  either  on  Thursday  or  Fri- 
day morning,  and  got  eight  sailors,  and  went  around  the  island. 
They  passed  between  Grand  and  Navy  Island  about  daylight,  when 
they  commenced  firing  upon  them  from  Navy  Island,  and  two  musket 
shots  were  fired  upon  them  from  Grand  Island.  They  got  back  to 
Chippewa  about  eight  o'clock,  and  defendant  remained  at  Chippewa 
all  that  day.  Defendant  went  round  the  island  to  see  if  the  Caroline 
had  come  down,  but  did  not  discover  her  ;  but  about  two  o'clock  in  the 
afternoon  defendant  saw  her  passing  from  Schlosser  to  Navy  Island. 

Defendant  then  returned  to  John  C.  Davis's  tavern  at  Chippewa, 
and  being  rather  unwell,  went  to  bed  about  3  o'clock  in  the  after- 
noon and  got  up  again  about  7  o'clock  or  a  little  before,  intending  to 
go  to  Niagara,  and  directed  Davis  to  get  his,  defendant's,  horse.  The 
defendant  took  his  horse  and  started  away  with  a  Mr.  Press,  in  his, 
Press's,  waggon,  defendant  leading  his  horse  ;  and  when  they  arrived 
at  Stamford,  about  five  miles  from  Chippewa,  defendant  called  in  at 
Captain  Morrison's,  an  acquaintance  of  defendant,  and  Morrison 
asked  him,  defendant,  to  have  his  horse  put  out  and  to  stay  all  night, 
and  he  accordingly  did  so.     He  arrived  at  Captain  Morrison's  house 

43 


MSi; 


^m 


.,4 


338 


GOTTLD  S   REPORTER. 


about  8  o'clock,  P.  M.  or  a  little  after.  Defendant  went  to  bed  about 
1 1  o'clock  and  arose  about  half  past  7  o'clock  next  morning,  and  at  be- 
tween 8  and  9,Capt.  Morrison  came  to  defendant  in  the  parlor  where  the 
defendant  had  slept,  defendant  then  standing-  in  the  door  of  the  room  ; 
and  Morrison  said,  they  have  burnedan  American  steamboat  last  night. 
The  defendant,  said  it  must  be  the  Caroline,  because  she  was  expect- 
ed down.  He  ate  breakfast  at  8  or  9  o'clock  and  then  Avent  to  Chip- 
pewa.    He  met  James  M.  Dyke,  who   informed  him  it  was  all  true. 

Now,  gentlemen,  we  have  produced  Mr.  Dyke  before  you,  and 
what  does  he  tell  you  '.  He  says  that  he  told  McLeod  of  the  evac- 
uation of  the  Island,  and  he  knows  it  was  that  morning,  because 
of  the  white  flag,  which  he  knew  was  the  signal  of  the  evacuation. 
Upon  the  examination  in  chief  and  upon  the  cross-examination,  Dyke 
insists  that  he  did  tell  McLeod  ;  that  he  spoke  of  the  white  flag  upon 
the  island,  and  not  of  the  destruction  of  the  boat.  That  it  was 
not  the  destruction  of  the  Caroline,  but  the  evacuation  of  the  island. 

Here  Mr.  Spencer  interrupted  the  Attorney  General,  and  by 
permission  read  from  the  testimony  of  Dyke  as  follows:  "  I  went  to 
Niagara  on  the  morning  of  the  30th  December.  I  have  said  repeat- 
edly that  I  met  McLeod  that  morning.  I  heard  him  say  that  he  had 
slept  at  Morrison's.  I  told  him  I  saw  him  there,  and  spoke  to  him 
about  the  .vhite  flag,  when  I  told  him  so.  I  think  that  was  the  time 
of  the  ei  Tcuation  of  the  island,  and  not  the  time  of  the  destruction  of 
the  Caroline.*' 

Gentlemen  of  the  Jury,  I  have  one  application  to  make  of  this  fact. 
A  man  charged  with  an  oflence  says  I  was  not  there,  and  oflfers  a  wit- 
ness to  prove  that  he  was  not  there,  ^'e  vouches  a  man,who  he  says 
told  him  all  the  circumstances  at  a  particular  place,  when  he  knows 
full  well  that  he  did  not  do  it.  If  there  is  any  one  circumstance 
which  in  Courts  of  Justice  is  more  damnatory  than  another,  it  is  to 
find  among  the  vouchers  a  forged  paper  to  make  out  a  title.  When 
a  claim  is  set  up  to  land  and  there  is  a  little  forgery  discovered,  it 
damns  the  best  title. 

It  is  that  one  circumstance  that  shows  and  betrays  the  falsity  that 
spreads  through  the  whole  of  the  prisoner's  case.  He  came  before 
a  Justice  and  endeavored  to  exculpate  himself  by  a  false  witness. 
For  whether  Dyke  knew  or  not,  McLeod  knew  and  must  have  known 
full  well  all  the  particulars.  When  therefore  he  fixes  upon  him, 
knowing  him  to  be  a  false  witness,  it  throws  a  deep  and  dark  cloud 
over  t!ie  whole. 

Gentlemen,  I  have  only  to  remark  to  you  in  very  few  words — you 
are  called  upon  to  say  by  your  verdict,  which  is  most  credible, 
that  twelve  men  should  combine  together  to  make  out  a  story,  or 
that  Morrison  and  his  wife  should  be  mistaken  as  to  the  time. 
Not  that  these  twelve  men  should  perjure  themselves  singly  and 
alone,  but  that  they  should  combine  together  and  dovetail  their 
stories  one  into  another,  and  that  they  should  have  appeared  here, 
and  concerted  boldly  to  swear  away  the  life  of  a  man. 

Do  you  believe  that  the  like  ever  occurred  in  the  history  of  man  1 
They  could  not  do  it.  They  would  be  confounded  iu  all  their  plans 
and  schemes, — it  is  impossible  !  s 


bed  about 
and  at  be- 
where  the 
the  room ; 
last  night, 
as  expcct- 
nt  to  Chip- 
is  all  true, 
you,  and 
f  the  evac- 
nr,  because 
jvacuation. 
ition,  Dyke 
;e  flao-  upon 
hat  it  was 
'  the  island. 
iVL,  and  by 
"  I  went  to 
said  repeat- 
that  he  had 
poke  to  him 
vas  the  time 
istruction  ot 

of  this  fact. 

offers  a  wit- 
,who  he  says 
en  he  knows 

ircumstance 
ther,  it  is  to 

itle.     When 

iscovered,  it 

e  falsity  that 

came  before 

se  witness. 

lave  known 

upon  him, 

dark  cloud 

words — you 
est  credible, 
a  story,  or 
to  the  time, 
singly  and 
ovetail  their 
ppeared  here, 

rtory  of  man  X 
ill  their  plans 


MCLEOD  S   TRIAL. 


be 


339 


' 


Gentlemen  of  the  Jury,  there  may  be  one  or  two  consu 
not  directly  connected  with  the  testimony,  which  may  not  be  impro- 
proper  for  me  to  suggest.  Consider  whether  this  is  a  mere  naked  act 
of  obedience  to  an  order,  which  the  prisoner  considered  binding. 
Think  whether  it  is  such  a  case  as  that — whether  lie  lias  not — even 
supposing  the  order  of  AlcXab  was  a  sufiicicut  wi  rrant  to  protect  the 
prisoner — gone  further  than  he  was  called  on  to  go  1  Was  there 
any  necessity  for  this  massacre  with  swords  and  pistols  1  Was  there 
any  necessity,  aftei'  the  occupants  had  left  the  boat,  for  pursuing  them 
on  the  wharf  and  killing  them  there  ?  If  not,  it  is  no  matter  how 
solemn  and  how  binding  that  order,  even  if  given  by  our  own  authority — 
if  he  went  beyond  the  order,  he  showed  that  depraved  and  malicious 
spirit  which  our  law  says  is  the  index  of  murder.  He  exceeded  the 
necessary  force  for  destroying  the  Caroline  which  was  the  subject  of 
the  order. 

And,  gentlemen,  think  not  that  there  is  palliation  to  be  found 
in  obeying  the  order  of  his  government.  It  was  a  voluntary  act  j  no 
man  was  compelled  to  go. 

They  were  going  about  and  getting  volunteers,  and  even  some 
who  engaged  to  go,  afterwards  refused  to  go.  You  perceive  by  all 
the  testimony  that  it  was  entirely  a  voluntary  affair,  whether  they 
were  engaged,  or  not.  There  is  therefore  no  palliation  from  their  being 
compelled  ;  nor  has  there  been  any  attempt  to  show  that  McLeod  was 
not  aware  of  the  law,  and  that  he  supposed  himself  bound.  Gen- 
tlemen, there  is  no  exception  to  the  rule  that,  ignorance  of  the  law 
can  never  be  pleaded.  It  pervades  the  Avhole  system.  If  the  wild  Arab 
and  brutal  Hottentot  should  come  upon  our  shore,  the  moment  they 
arrive  the  law  throws  its  protecting  shield  over  them,  and  exacts 
their  obedience  in  return. 

No  man  is  permitted  to  say  he  does  not  know  the  law.  The  law 
knows  him,  and  receives  him  into  its  protection  as  an  obedient  son. 
The  law,  like  the  Deity  whose  voice  it  is,  is  everywhere  present  within 
the  extent  of  its  dominions — it  sees  all — hears  all ;— its  sleepless  eye 
watches  over  the  husbandman  in  the  field,  the  artisan  in  his  shop,  the 
infant  in  its  cradle — is  present  to  receive  the  last  behest  of  the  aged 
man  as  he  closes  his  eyes  indeai.h  ; — it  hears  the  stealthy  hand  of  the 
robber  in  the  Capital ;  and  its  eye  glares  upon  the  midnight  murderer 
on  the  border.  There  is  no  instance  where  ignorance  of  the  law  can 
be  made  available  to  the  criminal. 

Gentlemen,  my  task  is  done.  I  have  endeavored  to  perform  my 
duty  in  this  painful  matter,  and  it  now  devolves  upon  you  to  discharge 
your  duty, — and  gentlemen,  while  I  take  my  leave  of  you,  I  pray  that 
God  may  enlighten  your  minds,  and  strengthen  your  hearts,  to  see  the 
truth  and  follow  it  fearlessly. 


;  4 


» 'i 


.mi 


340 


Gould's  reporter. 


Judge  Gridley's  Charge. 


I  congraiulc 


at  length  having  ar- 


Gentlemen  of  the  jury 
rived  at  the  closing  scene  of  this  long  protracted  trial. 

After  six  entire  days  have  boon  consumed  in  listening  to  the  evidence, 
and  one  day  and  a  half  in  listening  to  the  arguments  of  counsel,  you  have 
arrived  at  tiiat  period  of  your  labors,  when  you  are  to  enter  upon  the  last 
solenni  duty,  which,  in  the  allotment  of  Providence,  you  have  to  perform. 

I  congratulate  you,  also,  upon  the  auspicious  circumstances  under  which 
vou  approach  the  performance  of  this  duty.  It  is  true,  as  we  are  all 
aware,  that  a  deep  and  pervading  interest  has  been  felt  in  the  issue  of  this 
irial  tliroun-hout  this  entire  land  :  and  we  know  that  a  portion  of  the  press, 
from  tlic  earliest  moment  when  the  controversy  commenced,  till  this  hour, 
has  teemed  with  inflammatory  appeals. 

We  have  heard  of  the  prevalence  of  popular  commotion  in  various  parts 
i)f  the  country,  and  of  one  popular  outbreak  in  the  county  where  this  in- 
dictment originated  ;  setting  public  justice  at  defiance,  and  setting  at  dcfi- 
i.ncc;  the  ministers  of  public  justice. 

Though  these  disturbances  may  prevail  elsewhere,  so  far  as  my  know- 
ledge  extends,  they  have  not  entered  this  solemn  temple  of  justice.  If 
the  waves  of  excited  popular  commotion,  originating  elsewhere,  have 
swept  over  other  quarters,  they  have  been  arrested  before  they  rr  aclird 
the  portals  of  this  building,  consecrated  as  it  is  to  the  faithful  administra- 
tion of  the  law,  to  which  the  prisoner  and  the  people  alike  appeal. 

We  have  beheld,  as  attentive  auditors  during  the  progress  of  this  trial,  loyal 
subjects  of  the  British  government  who  were  in  arms  during  the  recent  trou- 
bles for  the  protection  of  their  soil ;  and  on  tlie  other  hand,  we  have  had  the 
presence  of  more  than  one  of  those  distinguished  organs  and  actors  connected 
with  the  recent  unsuccessful  and  abortive  attempts  at  a  revolution  in  the  Ca- 
nadian  provinces.  Yet,  although  these  individuals,  as  well  as  others  who 
Ijave  been  present,  must  have  been  deeply  interested  auditors  and  specta- 
tors of  what  has  occurred,  not  a  single  murmur  has  been  heard — not  a 
single  ebullition  of  excited  feeling  has  escaped. — All  has  been  quietness 
and  good  order,  and  a  signal  proof  has  been  given,  that  here  is  a  spot 
where  pure  and  impartial  justice  can  be  administered,  and  that  here,  if  no- 
where else,  the  law  is  allowed  to  be  paramount  and  supreme,  and  all  bow 
before  its  sovereign  behests. 

In  approaching  the  great  question  upon  which  you  are  to  pass,  allow 
me  to  add  one  more  prefatory  remark.  In  order  fairly  to  appreciate  this 
question,  it  is  necessary  that  you  keep  your  minds  free  from  the  conside- 
ration of  other  questions  which  have  nothing  to  do  with  this.  The  coun- 
sel who  have  addressed  you  on  the  one  side  and  on  the  other,  have  pre- 
sented such  arguments  and  such  topics  as  they  deemed  essential  to  further 
the  interest  of  the  parties  which  they  represent. 

But  the  tribunal  which  tries  has  also  duties  to  perform,  altogether  dif- 
ferent from  those  incumbent  on  the  advocates  intrusted  with  the  interests 
of  those  who  are  placed  at  its  bar. 

When  this  case  comes  to  be  presented  to  you,  stripped  of  all  the  adven- 
titious circumstances  by  which  it  is  surrounded,  it  will  be  no  more  than 


MCLEOD  .S   TRIAL. 


341 


an  ordinary  charge  of  murder ;   it  is  like  any  other  question  for  the  sannc 
olFonce — here,  as  elsewhere,  wliere  s\ieh  indietments  are  tried. 


having  ar- 


le  evidence, 
cl,  you  have 
ipon  tlic  hxst 
I  to  perform, 
under  which 
i  we  are  all 
issue  of  this 
of  the  press, 
till  this  hour, 

various  parts 
vhere  this  in- 
etting  at  dcfi- 

as  my  know- 
>f  justice.  If 
ewhere,  have 
they  reached 
ul  administra- 
jpeal. 

his  trial,  loyal 
le  recent  trou- 
e  have  had  the 
tors  connected 
ition  in  the  Ca- 
as  others  who 
>rs  and  specta- 
i  heard — not  a 
ieen  quietness 
here  is  a  spot 
lat  here,  if  no- 
3,  and  all  bow 

to  pass,  allow 
appreciate  this 
n  the  conside- 
The  coun- 
her,  have  pre- 
ntial  to  further 


altogether  dif- 
th  the  interests 

f  all  the  adven- 
no  more  than 


The  fir 


th 


has 


lurder  been  conn 


'd  f 


us 


tatc 


U(!stion 

Secondly,  is  the  prisoner  at  tl>c  t)ar  guilty  ot  t 

Upon  the  first  question  the  Supreme  Court 
Their  decision  is  authoritative  on  you  and  on  me. 

We  are  sitting  here  to  dispense  justice -in  the  Circuit  Court.  This  issue, 
as  well  as  others,  has  been  brouf^ht  from  the  Supr(>me  Court  to  bo  tried 
here,  and  we  are  to  be  governed  by  the  decision  of  that  superior  tribunal 
which  has  sent  down  this  issue  to  be  tried  her(>. 

It  is  no  longer  an  open  question  ;  it  is  an  adjudicated  one,  and  with  it 
you  have  no  concern.  The  circumstances  out  of  which  tlie  indictment 
originated  are  briefly  these. 

In  Deceml)er,  18;n,  a  body  of  Canadian  refugees  and  American  citi- 
zens  occupied  Navy  Island,  fortified  themselves  there,  and  opened  a  can- 
nonade upon  the  Canadian  main,  where  some  twenty-five  hundred  or  three 
thousand  men  were  assembled,  to  protect  the  territory  upon  which  they 
stood. 

It  was  alleged  that  the  citizens  of  Buffalo  had  given  some  aid  to  the 
occupants  of  Navy  Island.  William  Wells,  the  owner  of  the  steamboat 
Caroline,  for  the  purpose  of  promoting  his  own  interests,  as  he  swears 
before  you,  had  the  .steamboat  cut  out  from  the  ice  where  she  lay,  in  Buf- 
falo creek,  and  on  the  morning  of  the  twenty-ninth  of  December  that 
fatal  boat  made  h'T  first  trip  from  Buffalo  to  Schlosser,  touching  at  Black 
Rock  and  at  Navy  Island.  After  that  she  made  two  trips  between  Schlos- 
ser and  Navy  Island ;  and  -.vas  instrumental  in  conveying  armed  men, 
as  well  as  arms,  provisions,  and  one  piece  of  ordinance,  to  Navy  Island. 

Further  than  this,  it  does  no*  appear  that  the  Caroline  was  instrumental 
in  promoting  the  interests  of  the  occupants  of  Navy  Island. 

The  Canadian  authorities  saw  fit  to  regard  this  boat  as  a  portion  of  the 
arniament  of  the  insurgents,  and  resolved  to  destroy  her ;  and  if,  in  order 
to  effect  this,  it  should  become  necessary  to  destroy  life,  to  do  that  also  ; 
and  hence,  in  furtherance  of  this  design.  Sir  Allan  McNab,  the  commander 
of  the  provincial  forces  at  Chippewa,  ordered  volunteers  to  emi)ark  in 
boats.  Seven  boats  started,  two  of  which  failed  to  arrive,  but  five  did 
arrive,  and  from  these  five  boats  the  Caroline  was  boarded  while  her  peace- 
ful occupants  were  asleep  in  their  b(;rfhs ;  and  with  swords,  pistols,  board- 
ing pikes,  and  fire-arms,  the  attacking  party  chased  the  pei-sons  from  on 
board,  wounding  some,  and  killing  one  ;  and  whether  others  experienced 
a  similar  fate  we  know  not ;  and  having  set  fire  to  the  boat,  the  attacking 
party  sent  her  over  the  Falls. 

This  is  a  brief  history  of  the  transaction,  so  far  as  it  is  necessary  for 
you  to  consider  it,  for  the  purpose  of  understanding,  appreciating,  and 
disposing  of  this  question.  The  act  which  I  have  described,  is  held,  by 
the  prisoner's  counsel,  to  be  excusable  in  the  individuals  performing  it, 
for  these  reasons : 

First,  that  it  was  authorized  by  the  government  which  they  served,  and 
by  the  officers  to  whom  they  owed  obedience. 

Secondly,  because  it  was  done  in  necessary  self-defence. 

Thirdly,  because  the  act,  though  not  formally  authorized,  was  afterwards 
avowed  by  the  government. 

Fourthly,  because  the  whole  transaction  has  already  become  the  sub- 


r'» 


¥  } 


iv,m 


342 


r.OUI.D  S    REPOKTER. 


ject  ctf  negotiation  between  the  two  governments,  so  as  to  deprive  tliis 
court,  of  jurisdiction  to  try  the  oll'unce. 

Tlicsc  arguments  liave  been  laid  before,  and  acted  upon  by,  the  Su[)ronic 
(x'ourt,  and  tliat  court  i)as,  deliberately,  and  with  great  learning  and  un- 
common research,  examined  thcin  all,  and  pronounced  that  the  killing  of 
Durfee,  although  performed  in  the  prosecution  of  an  cnterprize  such  as 
that  which  1  have  already  described,  was  murder ;  and  it  follows  that  all 
who  were  engaged,  aiding  or  abetting,  are  guilty  of  the  same  oflence  ;  and 
it  is  not  necessary  that  the  arm  of  AlcLeod  should  have  struck  the  mortal 
l)low,  to  render  him  guilty.  It  is  enough,  that  he  engaged  with  others  in 
that  enterprize,  to  authorize  you  to  pronounce  him  guilty  upon  evidence 
which  satisfies  you  of  these  facts. 

Tiiis  question,  tht^n,  is  to  be  excluded  from  your  consideration,  and  I 
mention  it  only  lor  the  purpose  of  enabling  you  to  understand  how  far  this 
portion  of  th(j  case  has  been  disposed  of  by  a  higher  tribunal.  This 
(juestioti  has  been  already  adjudicated,  and  is  at  rest. 

'J'lien  comes  the  important  question  upon  which  you  are  to  pass,  is  Alex, 
ander  McLeod  guilty  of  that  murder? 

The  counsel  lor  the  people  have  presented  many  witnesses  before  you, 
the  tendency  of  whose  testimony  has  been  to  show  that  the  prisoner  is 
guilty,  and  in  order  that  you  may  understand  and  appreciate  this  testi- 
mony, I  shall  briefly  pass  it  in  review  before  you.  I  shall  distinguish  it 
into  two  classes  :  the  first  branch  will  consist  of  direct  and  circumstantial 
evidence,  other  than  that  arising  from  confessions  connecting  the  prisoner 
with  this  charge ;  the  second  class  of  evidence  will  consist  entirely  of 
confessions. 

The  first  witness,  according  to  this  classification,  who  has  testified  be- 
fore you,  is  Ciilman  Aj)pleby.  He  is  the  only  witness  who  was  on  board 
of  the  boat  at  the  time  of  the  attack,  who  has  sworn  that  McLcod  was 
there.  He  was  the  captain  of  the  boat ;  he  slept  in  the  gentlemen's  cabin  ; 
lie  was  awoke  a  little  past  twelve  o'clock,  as  he  thinks,  by  information  that 
there  were  boats  approaching ;  he  arose  and  partially  dressed,  made  his 
way  up  the  companion-way  till  he  found  his  farther  progress  arrested  ;  he 
retreated,  but  again  returned,  and  had  opened  the  door  about  a  foot,  when 
it  was  violently  thrust  open  by  some  one  outside,  who  then  made  a  plunge 
at  him  with  a  sword,  which  cutoff  two  of  his  vest  buttons,  and  struck 
against  the  metal  button  of  his  pantaloons.  He  was  considerably  excited, 
but  in  that  momentary  glance  he  saw  the  features  of  the  man  thus  attack- 
ing him,  and  his  impression  then  was,  that  the  individual  was  Alexander 
McLeod  ;  but  with  all  commendable  prudence  and  caution,  for  which  I 
honor  him,  this  witness  says,  that  amid  the  agitation  of  that  moment,  and 
in  that  hasty  glance,  he  cannot  say  that  it  was  McLeod.  He  had  once 
before  seen  the  prisoner  in  Buffalo,  and  it  struck  him  that  the  person  who 
thrust  at  him  was  similar  in  appearance  to  Alexander  McLeod;  but  it  was 
only  one  hurried  glance ;  and  he  immediately  replied  to  the  question  of 
counsel  when  on  the  stand  here,  that  he  could  not  say  that  it  was  Alexan- 
der  McLeod. 

The  next  witness  is  Samuel  Drown.  He  resided  at  Chippewa,  and  was 
engaged  in  tending  bar  for  one  Smith,  who  kept  a  tavern  there ;  and  he 
says  that  he  went  up  on  the  evening  of  this  transaction  to  what  is  called 
the  "  cut,"  and  up  the  Niagara  river  where  the  embarkation  took  place ; 
that  he  was  at  the  entrance  of  this  "cut;"  that  he  was  at  the  beacon- 


MCLEOD  S  TRIAL. 


343 


icprivc  this 

liu  Supreme 
ing  and  un- 
c  killing  of 
ize  such  as 
ows  that  all 
llbiicc ;  and 
i  the  mortal 
ith  oth(;r.s  in 
on  evidence 

•ation,  and  I 
how  far  this 
lunal.     This 

)as3,  is  Alcx- 

before  you, 
e  prisoner  is 
,c  this  testi- 
iistinguish  it 
ircumstantial 

the  prisoner 
it  entirely  of 

testified  bc- 
'as  on  board 
VIcLcod  was 
men's  cabin ; 
jrmation  that 
ed,  made  his 
arrested ;  he 

a  foot,  when 
lade  a  plunge 
3,  and  struck 
•ably  excited, 

thus  attack- 
is  Alexander 
,  for  which  I 
moment,  and 
^e  had  once 
3  person  who 
d  ;  but  it  was 
e  question  of 

was  Alexan- 

ewa,  and  was 
lere ;  and  he 
rhat  is  called 
n  took  place ; 
the  beacon- 


light  when  they  kindlod  thtir  fire  for  the  purpose  of  aifording  a  beacon 
to  guide  the  boats  on  their  return. 

On  that  occasion  lie  saw  the  boats  passing  into  the  "cut."  They  came 
along  up  the  "  cut  "  to  the  place  where  they  had  first  embarked,  and  there 
they  disembarked.  lie  stood  near  by  ;  within  a  i'ew  feet ;  it  was  dark. 
When  asked  whether  McLeod  was  among  tliinn,  his  answer  is,  "  I  should  say 
lie  was."  He  says  he  went  from  there  to  Davis's  tavern,  where  a  portion 
of  these  persons  came,  and  there,  by  a  liglit  which  shown  from  witliin  the 
bar-room,  or  by  a  light  on  the  stoop,  although  he  cannot  remember 
any  light  hanging  out  there,  he  professes  to  hav(^  seen  there,  again,  Alex- 
ander McLeod.  He  says  that  the  next  morning,  between  daylight  and 
sunrise,  he  heard  some  of  the  men  in  the  tavern  talking  of  McLeod's 
being  wounded,  and  spying  he  was  over  on  the  opposite  stoop,  some  four 
or  five  or  six  rods  distant ;  the  witness  looked  across,  he  says,  and  then 
thought  he  again  recognized  McLeod.  He  says  he  went  over  to  sec 
whether  McLeod  was  wounded  ;  he  saw  no  one  apparently  wounded,  and 
did  not  see  him.  He  was  inquired  of  in  relation  to  the  degree  of  cer- 
tainty with  which  he  could  say  that  the  man  whom  he  saw  was  McLeod, 
and  he  said  in  reply  that  "he  saw  a  man  whom  he  called  McLeod."  An- 
other question  was  put  to  him,  and  he  then  said,  "  I  mean  that  I  am  as  sure 
that  it  was  McLeod,  as  that  he  now  sits  before  me."  This  is  his  testi- 
mony. He  submitted  to  a  long  cross-examination ;  and  how  far  it  went 
to  weaken  your  confidence  in  his  statements,  it  is  your  province,  gentle- 
men, to  decide.  There  is,  however,  one  consideration  which  I  will  sub- 
mit  to  you.  It  is  this ;  When  you  arc  to  judge  of  the  credibility  of  a 
witness,  it  is  right  and  proper  that  you  should  observe  his  manner  on  the 
stand  ;  the  degree  of  intelligence  which  he  exhibits  ;  the  amount  of  powers 
of  observation  and  accuracy  of  recollection  ;  and,  having  done  so,  you  are 
to  decide  whether  his  answers  satisfy  you  that  he  is  honest ;  and  on  the 
whole,  whether  his  statement  is  of  such  a  character,  when  taken  all  in  all, 
that  you  can  rely  upon  it.  If  you  cann(Jt  entirely  rely  upon  it — if  it 
admits  of  some  doubt,  you  are  to  weigh  it,  and  give  it  just  so  much  credit 
and  confidence  as  you  think  it  merits,  and  no  more.  It  is  argued  by  the 
prisoner's  counsel  that  the  darkness  which  prevailed  then,  and  is  testified 
to,  was  such  as  made  it  exceedingly  rash  for  tliis  witness  to  pronounce 
so  confidently,  that  he  was  able  to  recognize  McLeod  as  well,  and  as 
clearly,  and  certainly,  as  now,  by  the  light  of  day.  It  is  also  argued  that 
he  stands  before  you  impeached  as  to  his  character  for  truth  and  veracity, 
upon  this  principle,  that  where  a  witness,  out  of  court,  has  made  a  different 
statement  from  that  made  by  him  in  court,  it  should  weaken  confidence  in 
the  statement  which  he  makes  under  oath.  Mr.  Bates  has  been  called, 
who  testifies  that  he  lives  near  the  residence  of  this  witness,  and  he  says 
that  he  heard  him  speaking  on  this  subject,  I  think,  at  some  former  period 
when  subpoenaed,  and  among  other  things  he  said  he  knew  nothing  in  re- 
ference  to  this  matter  that  could  do  McLeod  any  harm  or  any  good.  The 
statement  which  he  makes  of  what  he  said  is  somewhat  qualified.  It  is  re- 
marked on  the  other  hand  that  witnesses  who  are  subpoenaed,  frequently  make 
careless  observations,  and  that  this  person  being  a  poor  man,  might  wish 
to  avoid  attendance  on  this  trial.  This  is  very  true,  that  persons  often 
make  careless  remarks,  and  had  Drown  made  such  a  statement  in  pre- 
sence  of  any  one  who  could  have  excused  him  from  attending  here,  then 
the  plea  of  counsel  would  have  been  entitled  to  greater  regard  from  you. 


.M 


•4     \ 


m 


U,  v<: 


m  ! 


344 


GOULD  S    KEi'ORTKK. 


[f  in  truth  the  fucts  which  ho  has  hen*  stutcd  were  remembered  by  him  at 
thut  time — fucts  wliicii  wcro  uil  materiul,  when  the  life  of  tlio  prisoner  is 
at  stake — he  could  not  liavo  said  consistently  with  truth  that  he  itnew 
nothing  of  suHicient  importance  to  liarm  or  benefit  the  prisoner.  This, 
gentlemen,  is  the  extent  of  the  impeachment  of  this  individual's  testimo- 
ny. You  are  to  take  it  into  your  consideration,  and  so  far  as  it  detracts 
from  confidence,  you  are  to  exercise  your  judgment,  in  order  to  restonj 
him  from  this  impeachnuiit.  I  may  add,  that  in  order  to  restore  your 
confidence  in  Druwn,  Bates  was  (|uestionefl,  and  in  reply  stated  that  that 
individual's  character  fur  veracity  had  latterly  improved.  Mr.  Bates  went 
on  to  say  that  Drown  hud  been  au  intemperate  man,  and  these  habits  had 
an  effect  upon  his  character,  and  made  him  dishonest ;  but  fur  several 
years  bcifore  he  went  to  Canaila  he  had  reformed,  and  since  his  return  he 
liad  known  of  no  relapse.  So  I'ar  as  he  knew,  he  was  an  inolfensive  man  ; 
he  was  a  man  in  an  humble  walk  of  lite,  and  not  very  intelligent ;  a  man 
who  had  not  had  many  o|>portuiiilies  to  exhibit  what  his  character  was  as 
to  withstanding  temptation,  if  oll'ered  to  him.  You  have  his  tiistimony  in 
the  extent  in  which  it  has  been  given  ;  you  have  heard  the  reply  of  the 
witness  called  by  the  Attorney-General,  and  whether  you  believe  him  or 
not  is  for  you  to  decide. 

The  next  witness,  gentlemen,  is  Isaac  P.  Corson.  He  is  a  native  of 
this  State,  a  carpenter  by  trade ;  he  had  boon  in  Chippewa  in  prosecution 
of  his  business.  He  testifies  that  he  was  at  Mecklem's  store  three  or  four 
times  on  the  afternoon  of  the  29th  December,  1897  ;  that  he  there  saw  Mo- 
sier,  Usher,  and  the  prisoner,  and  at  nine  o'clock  he  saw  the  prisoner 
coming  out  of  Davis's  tavern  ;  and  that  he  also  saw  him  next  morning 
at  sunrise,  with  others,  on  the  "  stoop  ;  "  that  he  was  at  some  little  dis- 
tance ;  that  he  could  see  only  his  head  and  shoulders ;  that  he  was  telling 
of  his  exploits,  and  saying  that  he  had  killed  a  d — d  Yankee ;  that  he  saw 
him  again  two  or  three  days  afterwards  ;  that  he  then  said  he  would  like  to 
be  on  another  such  expedition,  and  cut  out  and  burn  Buffalo.  This  is  an  an- 
alysis of  this  witness's  testimony  which  is  spread  over  several  pages  of 
my  minutes.  You  will  recollect,  gentlemen,  this  witness's  cross-examina- 
tion,  and  will  judge  how  far  that  weakened  the  force  of  the  statements 
made  by  him  on  his  direct  examination.  There  is,  however,  one  point 
that  demands  your  particular  attention ; — it  is  a  point  which  you  should 
take  into  consideration  and  pass  upon.  This  witness  was  inquired  of  as 
to  who  else  were  present  when  he  heard  McLeod  flourishing  and  boasting 
of  having  killed  a  Yankee.  At  first  the  witness  could  not  recollect  any 
one  ;  at  length  he  said  he  could  name  one  Caswell.  He  was  then  asked 
whether  he  was  present  at  this  trial,  and  he  said  yes.  He  was  then  asked 
when  it  first  occurred  to  him  that  he  saw  Caswell  there  that  morning,  and 
he  confessed  that  it  was  that  very  moment.  The  cross-examination  was 
protracted,  and  in  the  course  of  it,  it  came  out  that  he  had  conversed  with 
Caswell  as  late  as  the  morning  of  the  day  on  which  he  testified  on  the 
stand  before  you  ;  that  they  talked  of  the  affair  of  the  Caroline,  and  that 
Caswell  informed  him  that  he  was  there  that  morning.  It  may  be  that 
that  was  all  true,  and  that  it  really  did  not  occur  to  him  that  Caswell  was 
there,  till  the  moment  the  question  was  put  to  him.  But  you  are  to  judge 
of  that. 

The  next  witness  is  Charles  Parke,  bar-keeper  at  Davis's  tavern — ^he 
testifies  that  the  prisoner  went  to  bed  at  Davis's  tavern  early  in  the  day. 


1 


mci.kod's  trial. 


3ir> 


I 


I  by  him  at 
prisoner  is 
il  ho  knew 
icr.  This, 
I's  tesliino- 
i  it  dotiacts 

to  restoiu 
c'Store  your 
v(\  that  lliat 
Bates  went 
J  liabits  had 

for  several 
is  return  he 
nsive  man  ; 
jnt ;  a  man 
cter  was  as 
eslimony  in 
reply  of  the 
icve  him  or 

a  native  of 
prosecution 
hree  or  four 
3ro  saw  Mo- 
the  prisoner 
:)Xt  morning 
(ic  little  dis- 
!  was  tcllini; 
that  ho  saw 
vould  like  to 
'his  is  an  an- 
ral  pages  of 
)ss-examina- 
e  statements 
r,  one  point 

you  should 
quired  of  as 
and  boasting 
ecoUect  any 
s  then  asked 
s  then  asked 
norning,  and 
ni  nation  was 
n versed  with 
nified  on  the 
ino,  and  that 

may  be  that 
Caswell  was 
are  to  judge 

3  tavern — ^he 
y  in  the  day, 


and  got  up  between  8  and  9  o'clock  in  the  evoning ;  that  a  gentleman 
called  liir  iiim  and  he  went  out;  that  half  an  hour  or  three. ([iiartors  of 
an  hour  allerwards  ho  saw  him  between  J)avi  "s  and  iIk!  (Jhippcwa 
creek;  that  a  good  many  people  were  on  the  road;  that  McliCod  went 
into  one  of  the  boats  ;  that  at  about  sunrise  next  morning  he  saw  him  at 
Davis's  ;  that  ho  again  saw  him  a  few  days  afterwards  in  the  ofllcers' 
mess-room,  and  there  heard  him  say  that  he  had  killed  a  d — d  Yankee, 
or  something  like  that.  At  tiio  close  of  his  examination  this  witness  was 
asked  whether  he  could  say  witii  considenihlti  certainty  that  he  saw  Mc- 
Leod  at  the  "cut,"  and  he  said  he  could  ;  he  was  asked  furllu  r,  and  said 
ho  had  no  doubt  of  it ;  he  also  states  that  it  was  pretty  dark  that 
night ;  and  testifies  also  to  other  facts,  on  account  of  which  the 
counsel  for  the  prisoner  contends  you  should  takt;  his  testimony  with  con- 
siderable  grains  of  allowance,  lie  ttslilies  as  to  his  knowledge  of  Mc- 
Lcod,  and  among  other  things,  says  that  he  once  went  a  distance  of 
thirty  miles  with  a  brother-in-law,  to  witness  the  payment  of  a  sum  of 
money,  for  which  he  thi'iks  u  receipt  was  taken,  although  he  camiol  re- 
member the  amount.  It  was  expected  there  might  be  difliculty  in  relation 
to  it,  and  his  brother-in-law  wanted  a  witness  present.  It  is  also  argued 
that  this  whness  tells  a  very  extraordinary  slory  in  relation  to  the;  manner 
in  which  he  has  been  induced  to  appear  here :  that  he  started  from  home 
a  week  before  the  trial,  and  had  aulually  got  as  far  as  Chippewa,  on  his 
way  to  Buffalo,  where  he  intended  to  make  certain  purchasi-s  ;  that  he 
suspected  some  one  who  accosted  him  on  th(!  way,  of  the  design  of  ar- 
resting him,  to  insure  his  attendance  as  a  witness  on  this  trial  ;  that  he 
returned  home — again  set  out  with  another  man,  to  purchase  in  BuH'ulo 
some  books  for  a  library,  a  stove,  a  |)ump,  and  a  plough  ;  and  that  early 
on  the  morning  after  his  arrival,  he  was  subpumaed  by  a  man  who  had 
seen  him  pass  through  Chippewa,  who  had  crossed  the  Niagara  river,  and 
had  gone  up  to  Buffalo  for  tliat  purpose. 

He  says,  too,  that  he  was  ignorant  as  to  the  law,  and  supposed  it  was 
a  process  u|)on  which  he  could  be  compelled  to  attend.  That  he  referred 
to  Mr.  Havvley,  and  Mr.  Hawley  told  him  that  if  he  did  not  consent  to  at- 
tend he  would  put  means  in  operation  to  compel  him  to  do  so.  Well, 
this  may,  or  may  not,  be  true.  It  is  not  the  fact,  however,  that  he  could 
have  been  compelled,  however  much  he  may  have  been  urged.  He 
might  have  made  his  purchases,  and  gone  o\it  of  the  country  before  an 
attachment  could  have  arrested  him.  It  was  only  after  he  had  been  called 
here  and  failed  to  appear,  that  an  attachment  could  have  been  issued, 
upon  which  to  arrest  him,  and  which  would  have  been  powerless  in  Canada. 
As  to  Mr.  Hawley  having  given  him  that  information,  we  have  no  light, 
except  what  the  witness  has  himself  stated.  I  am  not  aware  that  upon  a 
subpoena  any  witness  can  be  arrested.  It  is  urged  that  he  appears  like  an 
intelligent  man,  and  is  presumed  to  know  something  of  the  law.  It  is 
further  urged  that  this  will  be  more  apparent  when  you  look  at  other 
facts ;  he  was  asked,  whether  he  had  seen  any  person,  who  solicited  him 
to  come,  within  a  week  of  the  time  when  he  started  ;  he  says  he  had  been 
thus  solicited  within  a  month  ;  he  was  inquired  of  who  the  persons  were 
that  solicited  him.  He  says,  they  were  persons  religiously  opposed  to 
bearing  arms. 

Now,  I  have  no  opinion  to  express  upon  these  matters.  They  have 
been  insisted  on  by  the  prisoner's  counsel,  and  it  is  urged  that  they  ought 

44 


■'  I 


!  I 


'«3fc| 


■il: 

r  f 


iilit' 


;•     iil.il 

I      i.u;; 


M6 


GOULD  !*    REl'ORTER. 


to  drstrny  \\v  confnli-iiro  which  you  would  otherwise  place  in  his  state 


T. 


o  you  I  Icttvo  it. 


incuts. 

Tli('  next  witness  is  Caswell.  Ho  snys,  that  ho  saw  tho  prisoner  tlio 
cveiiiuj;  l)eli)r<'  the  hurniiig  of  thoCarolinu,  and  tho  niorninjjj  Hl\er,  on  tho 
steps  of  Davis's  tnv«'rn. 

Then  comes  Anson  U.  Quinhy.  IIo  is  tho  witness  from  I'cnnsyl. 
vania  ;  he  testified  that  ho  resi<led  some  two  or  three  miles  IVom  Chip- 
pewa;  that,  on  th(!  twenty-ninth  of  December,  ho  wont  to  Chippewa  with 
a  load  of  hay  for  sale  ;  that  thr;  hay  was  sold  to  the  povernment ;  that  ho 
did  not.  gi'X  paid  for  it  at  the  time  of  the  sale  ;  that  he  remained  till  even- 
ing,  and  in  the  courst;  of  the  evening  saw  tho  prisomjr  pass  out  from 
Davis's  tavern  ;  that  ho  remained  there  from  nino  till  ten  o'clock  ;  that 
he  then  started  for  homi-,  stopped  at  Pettis',  ahout  a  mile  off,  all  night ; 
that  he  then  turned  back,  and  was  again  in  Chippewa  between  daylight 
and  sunrise  ;  that  ho  went  buck  to  get  payment  for  his  hay  at  tho  com- 
missary's  ollice  ;  that  ho  was  going  there  when  he  saw  McLeod ;  that 
he  saw  him  on  tho  "  bridge,"  and  that  he  there  heard  him  boast  of  his 
exploits  on  th(!  Caroline,  and  heard  him  declare  that  there  was  the  blood 
of  a  Yankee  on  his  sleov(!.  lie  is  questioned  then  as  to  whether  he  ex- 
pected to  receive  paym(;nt  for  his  hay  at  that  early  hour,  and  whether 
there  were  any  persons  in  the  office,  and  he  said  there  were  not ;  that  he 
wished  to  bo  there  in  good  season,  as  ho  thonght  he  miglit  probably  find 
tho  clerk,  but  did  not  after  all  get  paid,  and  finally  went  home.  Ho  went 
through  a  long  cross-examination,  which  you  will  cull  to  your  recol- 
lection. 

Hut,  gentlemen,  it  seems,  according  to  the  testimony  of  Mr.  Lott,  of 
Lottsville,  Pennsylvania,  that  on  one  occasion  this  Quinby  came  with 
another  person  for  the  purpose  of  making  an  affidavit  before  Mr.  Lott, 
who  is  a  magistrate,  and  that  that  gentleman  refused  to  take  the  affidavit, 
because  Quinby  was  unworthy  of  credit ;  that  ho  went  to  anothtir  magis- 
trate, by  whom  the  afiklavit  was  taken  and  sent  on.  Lott  says  that  he  re- 
sides in  Lottsville,  three  or  four  miles  distant  from  Quinby,  tiiat  the  re- 
putation of  tho  witniiss,  Qe.inby,  while  resident  there  for  three;  or  four 
years,  was  very  bad  ;  that  he  was  not  to  be  believed  on  oath  ;  and  that,  in 
informing  the  prisoner's  counsel  of  his  character,  he  (Mr.  Lott)  had  no 
private  n)otivcs  of  malice  or  revenge  to  gratify.  He  was  asked  whether 
they  were  not  politically  opposed,  and  whether  that  circumstance  had 
induced  him  to  take  part  against  him.  He  says  not.  He  says  ho  was 
once  called  to  testify  in  a  case  in  which  Quinby  was  on  the  opposite  side ; 
that  he  had  no  private  griefs  to  complain  of,  or  grudge  to  gratify,  in  writ- 
ing the  letter  which  has  been  alluded  to ;  he  had  been  induced  to  do  so, 
because  he  knew  that  Quinby  was  unworthy  of  credit. 

Mr.  Wctmorc,  who  resides  in  Warren  county,  Pennsylvania,  testifies 
that  he  has  talked  with  persons,  with  a  view  of  ascertaining  whether  the 
character  of  Quinby,  for  truth  and  veracity,  could  be  impeached.  The 
result  of  his  inquiry  was,  that  it  could  be ;  but  that  his  testimony  on  the 
occasion  was  not  considered  of  sufficient  importance  to  render  it  necessary. 
Now  it  is  said,  and  it  is  true,  that  ordinarily  a  witness,  to  invalidate  the 
testimony  of  another,  should  be  called  from  the  neighborhood  where  he 
lives,  and  that  information  which  is  derived  from  going  into  a  neighborhood 
and  making  inquiries,  is  not  that  upon  which  you  can  rely  for  impeach- 
ment.    Tliia  is  the  law ;  but  this  testimony  of  the  lawyer  goes  a  little 


hM 


MCLROD  S   THIAL. 


317 


I'lirlhrr.  It  is  [lo.s.siljlc  tliiit  this  tiian  riiny  Imvr  liccn  no  tificii  ii  witness  in 
tlii.s  rouiity  UN  Ik  liiivi:  cicjiti'd  a  Huit  of  CDiirt  rt'|)iitatii)n,  wliicli  would 
jii.stit'y  coiitiHt!!  in  .suyini^,  if  you  wiint  ii  man  to  swear  ii|i  to  the  rn!ii'i<,  enll 
upon  Alison  I),  (iiiinl)y.  So  far  as  he  has  any  such  nputalion,  after  liv- 
ing  tliree  or  four  ye.us  in  tiie  county,  it  is  some  reason  for  conchHJin;,'  that 
he  is  not  wortliy  of  heliel".  liut  yuu  aro  tiie  urbiturs  of  this  (jucstion,  and 
to  you  1  leave  it. 

Tiie  {'vidence  of  Seth  ITinman,  for  whatever  it  is  worth,  is  also  hefort! 
you.  When  exhmined  before,  lie  said  McLeod  was  not  seen  by  hint  that 
morniii<^ ;  lie  now  sw(  firs  Ik;  was.  You  will  ^ivc*  this  the  credit  you  deem 
it  dosorvcs.  Justus  F.  T.  Sti'vens  is  then  called  and  sworn,  lie  tesliiies 
that  he  was  present  on  the  niglit  in  question,  and  that  ho  saw  threw  boats 
;,'()  out  and  rotiu'n;  and  he  distinctly  and  |)ositively  swears  that  Ik!  saw 
McIiC'od  (lisi'inburk  l)y  the  btiuH)!!  light.  Tiiat  is  u  statement  whi(di  is  not 
corroborated  by  any  other  witm.'ss,  and  is,  oi.  ll;o  contrary,  lioslile  to  the 
staienients  of  all  the  other  witnesses  on  both  sides.  It  cainiot  be?  true. 
Ho  was  dismissed  from  the  stand  without  cross-examination.  He  lias 
testified  to  what  is  a  deliberate  falsehood — a  falsehood  for  which  the  pal- 
liatiiifT  plea  of  the  probability  of  mistake  cannot  be  olFered.  Leonard  An- 
son  is  the  next  witness.  He  swears  that  ho  was  present  the  next  morn- 
ing after  the  burning  of  thi  Caroline,  in  Davis's  bar-room  ;  tluit  McLeod 
stood  with  bis  arm  on  the  bar;  that  he  had  been  drinking;  that  there 
were  ollu  rs  there  who  look  part  in  the  expeililion  against  the  Caroline, 
each  boasting  as  to  who  hud  committed  the  greatest  crime ;  that  be  saw 
McLeod  draw  out  his  pistol,  ond  Heard  him  declan;  that  he  had  killed  a  d — d 
Yankee  ;  and  that  ho  pointed  out  the  blood  on  the  stock  of  tlie  pistol. 
This,  it  is  contund(!d  on  the  part  of  the  prisoner,  is  un  improbable  stoiy  ; 
that  he  could  not  have  seen  the  blood  on  the  pistol  ;  and  other  considerations 
liavo  been  submitted  to  you  in  relation  to  the  testimony  of  this  individual, 
wiiich  it  is  imnecessary  for  mo  to  dwell  upon  now.  You  are  the  judges 
of  tlieir  weight,  and  the  attention  which  shoald  be  given  them.  These  are, 
I  believe,  tlu;  only  witnesses  bek^nging  to  the  first  class  of  evidence.  That 
is,  tliesc  arc  the  only  witnesses  who  testify  of  their  own  knowledge — as  to 
facts  uimllied  with  confessions  which  go  to  connect  McLeod  with  this  en- 
terprise. And  the  prisoner's  counsel  contend  that  some  of  these  witnesses 
have  been  impeached,  and  that  otlu'rs  have  appeared  in  very  doubtful  cir- 
cumstances ;  that  the  darkness  of  the  night  was  a  good  reason  why  no 
very  great  confidence  should  be  placed  in  the  statements  of  those  testify- 
ing so  positively  that  th(!y  recognised  McLeod  with  sucli  certainty.  And 
that  what  they  liavo  thus  proved  is  enough  to  throw  some  shade  of 
suspicion  on  tlu-  whole.  That  is  the  view  taken  of  it  by  the  prisoner's 
counsel.  Whilst,  on  tlie  other  hand,  the  counsel  for  the  prosecution 
insist  that  it  is  a  mass  of  testimony  which  you  must  believe,  and  be- 
lieving which,  you  cannot  doubt  the  fact  of  the  prisoner's  guilt.  It  is 
your  province  to  criticise  all  this  and  pass  upon  it.  The  other  branch 
of  the  evidence  is  that  contained  in  the  confessions  of  the  prisoner — and 
there  is  a  principle  of  law,  applicable  to  that  description  of  evidence,  to 
which  the  counsel  for  the  prisoner  has  directed  your  attention,  and  to 
which  it  is  right  that  the  court  should  call  your  attention,  though  the 
counsel  has  read  it  to  you.  It  is  this,  that  confessions  are  the  most  sus- 
picious kind  of  evidence — easily  fabricated,  and  difhcult  to  be  disproved  ; 
liable  to  be  mistaken,  liable  to  be  partially  heard,  partially  remembered  j 


1 

I 
1 

< 

• 

1 

i  t 


ri' 


^1 

1 

;.if 

Bi:  ^ 

y 

[Mt    *« 

t  0 

IP 

11    n.- 


348 


GOULD  S   REPORTER. 


liable  to  be  misrepresented  ;  and  unless  corroborated  by  other  testimony, 
the  rule  adopted  by  the  elementary  writers,  and  sanctioned  by  the  most 
distinguished  jurists,  is,  that  they  are  the  most  unsafe  description  of  testi- 
mony upon  which  a  jury  can  rely.  Nevertheless,  they  are  competent  to 
be  weiglied,  judged  of,  and  passed  upon  like  all  the  other  evidence  in  the 
case.  I  therefore,  gentlemen,  call  your  attention  to  the  evidence  of  Henry 
Meyers  ;  and  I  would  admonish  you  that  one  rule  by  which  you  arc  to  test 
the  declarations  of  witnesses  is,  that  you  are  to  sec  whether  they  are  proba- 
ble — such  as  men  in  similar  circumstances  would  make  ;  and,  whether  they 
call  for  the  indulgence  of  credulity,  you  are  to  judge  by  these  rules. 
He  testifies  that  on  one  occasion,  about  a  year  anterior  to  the  destruction 
of  the  Caroline,  he  had  seen  McLcod  at  a  tavern,  where  he  stayed  over- 
night ;  that  in  passing  Niagara  Falls  on  his  way,  removing  back  to  Geneva, 
he  stopped  at  a  tavern  on  the  north  side  of  the  road,  and  there  saw 
McLeod  with  a  number  of  others,  in  a  bar-room ;  they  were  discoursing, 
about  the  destruction  of  the  Caroline ;  McLeod  was  accosted  by  name, 
by  another  of  the  party  ;  and  in  answer  to  a  question  by  some  one  of  the 
party,  "  where  is  the  man  that  killed  Durfce  1"  McLeod  exclaimed,  "  here 
he  is,  I  am  the  man,"  and  dre'v  out  a  pistol  and  exhibited  it ;  and  then 
drew  a  sword  and  exhibited  that;  there  was  blood  upon  the  sword  five  or 
six  inches  from  the  point ;  that  he  boasted  he  had  killed  one  d — d 
Yankee,  or  rebel,  and  that  he  compelled  the  witness  to  "  treat"  the  party. 
You  will  judge  of  the  credibility  of  this  witness's  story.  It  has  been 
urged  upon  you,  that  it  is  very  improbable,  even  if  the  sword  had  been 
used  on  the  Caroline,  that  blood  would  have  remained  upon  it  ten  days 
afterwards ;  and  that  such  a  story  should  not  gain  your  credence — but 
you  are  the  judges  of  it.    This  witness  goes  further  and  says,  that  McLeod 


him. 


calling 


him  a  d — d  rebel,   and  asked  him  where  he  was 


attacked 

moving.  That  he  went  out  to  the  shed,  and  McLeod  and  others  followed 
him  out,  where  it  was  finally  agreed,  that  if  he  would  go  in  and  treat  the 
company  to  some  refreshment  they  would  let  him  go  ;  that  he  did  go  in  and 
treat  to  the  amount  of  a  dollar,  and  they  then  let  him  go.  lie  says,  ho 
knew  that  it  was  McLeod,  the  same  whom  he  had  seen  a  year  before. 
To  show  that  it  was  Alexander  McLeod,  and  no  one  else,  the  witness 
says,  that  he  was  called  Alexander  McLeod. 

He  was  asked  to  state  the  forms  of  expression — which  he  did  in  your 
hearing — it  was  like  this :  "  Alexander  McLeod,  had  we  better  let  this 
man  go  ?" — •'  Sandy  McLeod,  shall  wc  go  in  and  take  something  to 
drink  ?" 

It  has  been  urged,  that  it  is  very  improbable  that  men  under  such  cir- 
cumstances,  would  have  been  as  familiar  as  he  represents  them  to  have 
been — that  it  is  not  natural  or  probable — and  that  the  statement  carries 
with  it,  its  own  refutation.  Whether  it  does  or  not,  you  arc  to  decide  ; 
but  there  is  one  circumstance  to  which  no  allusion  has  been  made  by 
counsel  on  either  side.  He  says  that  having  been  thus  abused  by  McLeod, 
he  determined  that  if  he  ever  caught  him  on  this  side — he  would  use 
McLeod  as  McLeod  had  used  him.  Whether  this  will  give  character  to 
his  evidence  is  for  you  to  determine. 

The  next  witness  is  Calvin  Wilson.  He  was  the  keeper  of  a  ferry  at 
Youngstown.  He  says  to  you,  that  a  few  days  after  the  destruction  of  the 
Caroline,  between  the  fifth  and  the  fifteenth  of  January,  he  went  over  into 
Canada,  and  went  into  a  house  where  was  the  prisoner,  and  one  Raincock, 


! 


MCLEOD  S   TBIAL. 


349 


he 


4 


i 


with  whom  he  was  well  acquainted,  he  having  been  a  custom-house  officer 
with  whom  the  witness  had  done  much  business.  There  was  also  Mosier, 
Elmslcy,  and  other  distinguished  actors  in  this  scene.  While  there,  the 
question  came  up  in  relation  to  the  Caroline.  McLeod  declared  that  one 
d — d  rebel,  or  \'ankee,  had  got  shot  on  the  wharf. 

He  was  cross-examined  ;  and  acknowledged  that  his  feelings  are  en- 
listed in  the  Patriot  cause  ;  that,  though  a  poor  man  with  a  family,  he  had 
contributed  $200  for  the  promotion  of  that  cause  ;  when  he  was  asked  if 
he  had  not  been  personally  engaged  in  some  enterprize  against  a  foreign 
government,  he  refused  to  answer,  and  when  inquired  of  whether  he  had 
not  harbored  Lett,  he  declined  answering  the  question.  The  counsel  for 
the  prisunc'r  have  argued,  that  you  are  to  take  this  as  an  acknowledgment 
that  he  diil  engage  in  that  enterprize  with  the  Patriots. 

You  are  not  to  take  for  granted  that  he  was  actually  guilty  of  any  crim- 
inal act,  by  reason  of  his  refusing  to  answer  the  question  ;  because  he  is 
fully  authorized,  by  an  ostablislied  rule  of  law,  to  decline  answering  any 
question,  which  may,  by  possibility,  implicate  himself;  because  there  may 
be  circumstances  connecting  him  with  those  transactions,  sufficient  to  con- 
vict him  though  innocent.  Therefore  this  broad  rule  which  the  law  allows 
in  relation  to  matters  which  may  tend  to  convict  him  for  any  offence. 
It  is  not  to  be  inferred  that  he  was  guilty  of  perjury,  merely  because  he 
throws  oyer  himself  the  shield,  which  the  law  affords  him,  for  his  protec- 
tion ;  or  that  he  was  guilty  of  harboring  Lett,  because  he  refused  to  an- 
swer the  question.     These  arc  independent  grounds. 

But  he  makes  Raincock  one  of  tlie  persons  witli  whom  he  held  con- 
versation on  the  occasion  alluded  to  ;  he  makes  him  the  person  who 
opened  the  conversation ;  and  says  he  was  a  [)ersou  with  whom  he  was 
well  acquainted  ;  he  declares  to  you  that  he  was  not  mistaken,  but  actually 
saw  him  there ;  though  evidence  has  been  submitted  on  the  part  of  the 
prisoner,  which  goes  very  strongly  to  show  that  his  statement  is  not  true. 
Mr.  Hamilton  says  that  he  and  his  lady  had  been,  through  the  previous 
summer,  in  England  ;  that  before  he  left  the  province  of  Canada  for  Eng- 
land, he  was  well  acquainted  with  Raincock  ;  that  he  was  a  most  intimate 
companion  ;  so  much  so  that  Raincock  persuaded  the  witness  to  leave  his 
own  lodgings,  and  come  and  board  where  Raincock  did. 

He  left  England,  and  returned  to  Canada  in  the  last  of  October,  or 
the  first  of  November.  He  found,  on  his  arrival,  that  Raincock  had  be- 
come embarrassed,  and  had  left  the  country,  before  the  troubles  com- 
menced. Their  residence  was  a  small  village  containing  only  about  seven 
hundred  and  fifty  inhabitants,  and  he  knows  that  Raincock  was  not  there. 

Another  witness,  Mr.  Stocking,  who  resides  in  the  same  village,  says 
that  Raincock  left  before  the  troubles  commenced.  Both  these  witnesses 
testify  that  he  was  not  there,  and  could  not  have  been  there  without  their 
knowledge:  and  if  you  believe  he  was  not  there,  it  is  a  refutation  of  the 
statement  of  this  witness,  Wilson.  But  if  they  are  mistaken,  and  he  was 
there,  his  statement  is  not  affected. 

Sarles  Yates,  another  witness,  has  testified  nothing  worth  hearing. 

The  next  witness  is  Timothy  Wheaton.  He  was  called  by  permission 
after  the  prosecution  rested — the  Attorney-General  supposing  that  there  had 
been  a  reservation  in  favor  of  this  witness  being  admitted  to  testify.  He 
deposes  that  about  a  year  after  the  affair  of  the  Caroline,  he  went  from  his 
residence  at  Whitby,  near  Toronto,  to  Niagara ;  that  he  was  near  the 


m 


¥'.' 


350 


GOULD  S   KEPORTER. 


ferry  ;  that  he  saw  McLeod  coming  up  from  the  water-side,  and  the  witness 
remarlted  to  him  that  the  sentinels  had  a  hard  time  of  it ;  that  lliey  then 
talked  of  the  Navy  Islanders,  and  about  their  number  ;  that  McLcod  said 
they  never  would  have  the  Caroline  there  again,  and  added  tliat  he  was  the 
second  or  third  man  who  boarded  her ;  that  then  some  person,  a  stranger 
to  witness,  interrupted  the  conversation  by  taking  McLeod  oil";  that  he 
(the  witness)  turned  from  the  ferry,  although  he  had  set  out  to  go  to  Lock- 
port,  yet  recollecting  he  had  not  a  pass,  and  being  fearful  that  he  would 
not  be  allowed  to  cross  the  river,  he  turned  short  about  and  went  home. 
Gentlemen,  you  are  carefully  to  examine  tliis  evidence,  and  decide  accord; 
ing  to  your  conscientious  conviction  of  the  truth,  as  it  really  is. 

These  are  the  facts  as  they  have  been  given  in  evidence  :  you  have 
that  evidence  before  you,  and  you  are  to  pass  upon  it.  You  are  then  to  take 
the  entire  mass  of  this  evidence,  and  decide  upon  the  weight  which  is  to  be 
attached  to  it,  fearless  of  consequences  ;  and  as  you  really  believe  the  truth 
is.  If  you  believe  thi?  evidence,  notwithstanding  some  objections  have  been 
made  to  it,  and  some  deductions  arc  to  be  made  on  account  of  impeach- 
ments; if  you  believe  after  all  that  there  is  an  amount  of  evidence,  which 
requires  you  to  call  upon  the  prisoner  to  answer  ;  you  will  then  take  up  the 
defence  which  has  been  spread  before  you.  It  is  undeniable  that  much  of  it 
is  very  questionable  ;  still,  after  all,  it  is  undeniable  that  it  bears  very  hard 
upon  the  question  of  the  prisoner's  guilt. 

You  are  now  to  look  at  the  prisoner's,  side,  because  it  is  the  right  of 
every  man  put  on  trial  to  present  his  witnesses,  have  them  examined,  and 
if  he  succeed  in  establishing  the  defence,  to  have  the  full  benefit  of  it  ac- 
corded to  him.  That  defence,  gentlemen,  is  what  is  called  an  alibi.  It  is, 
in  other  words,  that  he  had  no  part  or  lot — no  sort  of  participation  in  this 
enterprise.  And  this,  after  the  disposal  of  the  first  question  already  passed 
upon  by  the  Supreme  Court,  is  the  only  other  ground  of  defence  that 
exists.  And  in  my  judgment  no  degree  of  suspicion  should  attach  to  it  as 
an  original  defence,  because  it  is,  as  I  have  just  said,  the  only  defence  that 
remains  for  the  prisoner  at  the  bar.  If  he  were,  in  truth,  upon  the  expedi- 
tion, then  is  he  guilty,  and  so  you  must  pronounce  him.  But,  gentlemen,  if 
he  was  at  that  time  five  or  six  or  seven  miles  distant — if  he  had  no  partici- 
pation in  that  enterprise,  then  the  same  great  principles  of  justice  require 
that  you  should  pronounce  him  innocent.  The  evidence  sustaining  this 
defence  consists  of  the  depositions  of  individuals  avowedly  participating  in 
the  expedition  ;  and  secondly,  of  the  oral  testimony  of  several  indviduals, 
showing,  or  tending  to  show,  that  McLeod  was  during  the  execution  of 
this  enterprise  at  a  distant  spot  in  another  town.  First,  then,  with  regard 
to  the  evidence  of  the  commissions.  The  prisoner's  counsel  is  right  in 
teUing  you  that  evidence  taken  in  this  way  is,  and  should  be,  less  satisfac- 
tory than  that  given  personally  before  you.  But  so  far  as  the  depositions 
themselves  go  to  describe  the  individuals  testifying,  you  may  derive  some 
information  respecting  the  standing  and  character  of  these  individuals. 
Some  of  them  are  lawyers,  some  of  them  mariners,  and  some  of  them 
officers  in  her  majesty's  service ;  and,  by  their  description,  they  should  all 
be  men  of  character  and  responsibility :  whether  they  were  or  not  we  have 
no  means  of  knowing. 

It  has  been  said  that  this  commission  was  a  "  roving  commission  ;"  that 
witnesses  were  examined  whose  names  had  not  been  before  furnished  to 
the  opposite  counsel.    The  Attorney-General  admitted  that  there  was  no 


I 


I    il 


MCLEOD  S   TRIAL. 


351 


reproach  to  be  attached  to  the  learned  counsel  on  the  other  side,  for  it 
was  not  known  who  could  be  found  :  that  many  names  were  given,  and 
with  a  commendable  liberality,  leave  was  given  to  examine  moro  witnesses 
than  those  named.  It  has  been  said  also  that  the  clerk  of  the  commis- 
sioners was  engaged  in  getting  together  the  witnesses,  and  that  some  sus- 
picion should  attach  to  this  evidence  en  riat  account.  Under  some  cir- 
cumstances the  observation  would  be  correct,  and  entitled  to  your  con- 
sideration  ;  but  we  have  heard  in  what  manner  they  were  executed,  and 
you  will  be  able  to  determine  whether  this  latter  objection  should  carry 
any  weight. 

The  interrogatories  were  read  over  to  each  witness,  and  as  each  answer 
was  obtained,  such  answer  was  dictated  by  the  commissioners  and  written 
down  by  the  clerk  as  amanuensis  :  and  this  mode  was  pursued  throughout. 
Whether  diis  scribe  was  a  proper  person  to  be  employed,  whether  his  feel- 
ings w(,'re  interested  one  way  or  the  other,  it  could  make  very  little  dif- 
ference with  the  testimony.  It  has  been  said,  too,  that  on  one  occasion, 
when  j\Ir.  Harris  was  examined,  the  conuTiissioners  refused  to  take  down 
his  answer  as  he  gave  it.  It  related  to  the  mode  and  manner  in  which  he 
had  acted,  and  the  degree  of  activity  which  he  had  used.  He  stated  that 
he  ignited  two  "carcasses,"  or  instruments  of  combustion,  and  throw  one 
in  one  part  and  another  in  another  part  of  the  boat.  The  commissioners 
substituted  ihe  statement,  that  he  was  very  active  in  the  destruction  of  the 
boat.  It  is  not  perceivable  how  this  could  be  considered  very  important, 
as  it  does  not  conflict  with  the  statement  of  any  other  witness.  Again,  it 
has  been  stated  that  these  depositions  are  not  entitled  to  full  credit,  because 
the  deponents  avow  themselves  accomplices  in  the  transaction.  The  law 
is,  undoubtedly,  that  in  ordinary  cases  in  the  trial  of  individuals  for  felony, 
the  witnesses  for  the  people  are  not  entitled  to  so  much  credence  where 
they  confess  themselves  accomplices,  as  fair  and  disinterested  witnesses 
would  be,  because  the  former  testify  under  a  powerful  motive.  When  the 
people  put  a  witness  upon  the  stand  to  swear  against  an  accomplice,  it  is 
supposed  they  will  not  hold  such  witness  responsible  for  participation  in  the 
crime.  If  this  were  an  ordinary  indictment,  for  a  murder  of  an  ordinary 
description,  then  the  mooted  point  would  be  this  objection.  But  as  regards 
these  individuals,  we  have  no  doubt  as  to  their  participation  in  the  offence  : 
they  were  all  guilty  of  the  murder  of  that  individual  who  lost  his  life  on 
the  occasion  of  the  destruction  of  the  Caroline.  There  are  distinguished 
men  in  our  country,  however,  who  hold  that  those  persons  ought  not  to  be 
held  individually  responsible  if  they  regarded  themselves  as  engaged  in  a 
public  enterprize.  It  does  not  involve  theinoral  guilt  of  an  ordinary  mur- 
der, if  they  regard  it  as  a  public  achievement,  a  kind  of  war ;  and  they 
claim  the  same  amenity  as  would  be  accorded  to  those  engaged  in  a  com- 
mon war.  Then  you  will  perceive  that  the  same  degree  of  deduction  from 
their  credence  ought  not  to  be  made,  as  should  be  made  in  cases  such  as 
I  have  alluded  to  ;  nevertheless,  it  is  a  subject  for  your  consideration.  If 
you  consider  it  should  detract  from  the  degree  of  confidence  to  be  placed 
in  them,  so  much  deduction  will  you  make. 

The  Attorney-General  has  criticised  the  testimony  of  these  deponents 
with  great  minuteness,  and  equally  great  ability.  He  has  pointed  out 
where  the  witnesses  have  testified  inconsistently  with  each  other,  and  made 
a  very  ingenious  argument  to  show  that  they  testified  untruly.  Thev  tes- 
tify that  there  was  resistance ;  that  pistols  were  fired,  and  that  some  were 


fi-i^  I, . 


'1^ 


:'f 


'.'m| 


;P    Jf 


m, 


:iii. 


II  ill  V'   f 


352 


Gould's  reporter. 


wounded — when,  if  wc  bcliovc  those  on  tlic  boat,  no  resistance  was  made 
at  all — that  tli(^y  were  unarmed,  and  that  they  fled  for  their  lives,  and  they 
wore  pursued  with  arms  by  those  men.  On  the  other  side,  one  and  all 
of  them  have  sworn,  that  there  was  resistance.  If  they  did  this  with  a 
knowledge  that  they  were  testifying  falsely,  it  does  certainly  detract 
largely  from  the  confidence  to  be  placed  in  their  statements.  But  I  think 
it  was  Wells  himself  who  said,  as  the  boarders  approached  the  boat  in  the 
darkness  of  the  night,  and  in  the  confusion  of  the  melee,  they  all  taking 
a  part,  had  mistaken  each  other  for  the  occupants  of  the  boat,  and  that 
th(;y  fought  together.  If  that  were  true,  then  it  would  follow  that  in  tes- 
tifying as  to  resistance  encountered  on  board  the  boat,  they  were  not  false 
in  the  corrupt  sense  of  the  term.  It  has  again  been  said  by  one,  that  there 
were  so  many,  on  this  expedition,  by  others  that  there  was  some  other 
number.  Now,  some  may  have  stated  the  number  that  reached  the  boat ; 
others,  the  whole  number  engaged  in  the  expedition  in  the  seven  boats; 
and  so  far  as  they  have  stated  positively,  and  these  positive  statements  have 
turned  out  to  be  umrue,  so  much  you  will  detract  from  the  confidence 
which  you  would  otherwise  place  in  them. 

Passing-  from  this,  gentlemen,  there  is  this  other  consideration,  which 
must  strike  you  in  the  outset.  If,  when  Alexander  McLcod  sued  out  this 
commission,  and  directed  the  commissioners  to  examine  persons  who  had 
been  in  each  of  the  boats,  upon  the  question  whether  he  was  there  or 
not,  and  if  in  truth  he  were  there  on  this  occasion,  he  i  ust  be  a  bold  man 
indeed.  Because  he  must  either  have  supposed  that  the  commissioners 
would  take  only  those  who  could  not  have  known  whether  he  was 
thc;c  or  not,  or  that  these  men  would  be  so  corrupt  as  to  swear 
falsely,  to  extricate  him  from  the  punishment  of  his  crime.  But  this  is 
no  further  evidence  than  as  it  is  a  portion  of  the  history  of  the  transac- 
tion ;  and  with  these  views  you  are  to  take  up  the  testimony,  and  ascer- 
tain, after  solemn  inquiry,  how  much  credit  you  should  give  these  wit- 
nesses, and  how  far  they  are  to  be  believed  in  their  statements. 

Now,  gentlemen,  one  word  to  begin  with.  It  is  undoubtedly  true,  gen- 
tlemen, that  Sears  cannot  say,  with  any  degree  of  certainty,  that  McLeod 
was  not  on  board  the  expedition.  It  is  equally  true,  that  McNab  cannot 
say  so,  although  he  superintended  the  embarkation  of  the  persons  engaged 
in  the  enterprise,  was  on  the  beach,  and  communicated  the  last  command 
in  a  whisper  to  Drew.  None  but  the  All-seeing  eye  could  penetrate  the 
darkness  that  shrouded  those  tljere  associated.  But  there  are  some,  one  or 
more,  of  the  inmates  of  each  particular  boat  who  were  there  engaged,  and 
who  have  been  examined  on  oath.  Some  of  them  knew  McLeod  well 
before  that  time  ;  others  became  acquainted  with  him  afterwards  ;  some 
talked  with  and  recognised  all  their  associates,  and  they  all  testified  that 
McLeod  was  not  among  them  on  that  night,  though,  in  the  strict  sense  of 
the  term,  they  did  not  recognise  them,  because  to  recognise  is  to  remem- 
ber  the  face  of  one  whom  you  have  seen  before.  In  that  sense,  some  of 
them  certainly  did  answer  that  they  saw  them,  though  they  did  not  recog- 
nise them.  In  listening  to  the  reading  of  those  interrogations  I  may  have 
erred  ;  but  as  I  listened  to  them,  it  was  my  impression  that  the  witnesses 
all  stated,  cither  that  they  knew  McLeod  was  not  there,  or  they  could 
safely  say  that  McLeod  was  not  before  them.  I  may  have  misunderstood, 
but  from  the  answers  given  to  all,  I  gathered  this  as  the  substance  of  those 
answers.     It  may  well  be,  that  you  should  give  the  preference  to  the  po- 


mclkod's  trial. 


353 


sitive  testimony  of  a  witness  who  was  upon  the  spot  at  tiic  time,  hecause 
it  is  fur  more  satisfactory  than  that  of  one  wlio  says,  "  I  did  not  see  him  ;" 
but  the  degree  of  strength  should  depend  on  the  attending  eircumstances, 
and  upon  the  opportunities  which  the  party  lias  to  know  the  truth  of  what 
he  avers.  If  one  of  your  number  should  ride  with  me  in  a  waggon  from 
here  to  Whitesborough,  you  would  swear  positively  that  I  was  in  the 
wagon  ;  and  if  one  of  you  should  ride  alone,  you  would  swear  imequivo- 
cally  that  I  was  not  in  the  waggon ;  and  the  opportunity  would  be  such  th;*t 
you  could  say  with  entire  certainty  that  I  was  not  there  ;  in  that  case,  and 
in  all  like  cases,  the  confidence  which  ought  to  be  attached  to  testimony, 
should  vary  in  proportion  to  the  opportunity  to  know. 

Now  those  boats  contained  some  eight  or  nine  persons  each,  all  of  whom 
embarked  and  crossed  the  Niagara  river,  before  they  reached  the  fatal 
spot  where  this  catastrophe  took  place.  You  will  determine  what  confi- 
dence to  place  in  their  statements,  when  each  one  says  that  he  knows  Mc- 
Leod  was  not  in  his  boat,  and  so  far  as  his  own  boat  is  concerned,  he  ven- 
tures to  say  with  positiveness,  that  he  was  not  there.  You  will  consider 
the  darkness  of  the  night,  the  conversation  which  took  place,  and  the  oppof- 
tunities  which  they  had  to  know  4hese  facts ;  and  then  judge  and  state  the 
result  of  that  judgment  under  the  solemnity  of  your  oaths-  I  leave  this 
portion  of  the  evidence,  with  a  single  remaining  statement.  You  are  to 
examine  the  testimony  and  deduct  what  you  think  ought  to  be  deducted. 

It  is  the  prisoner's  right,  standing  upon  trial  for  life  or  death,  ii'  tiierc; 
is  testimony  which  goes  to  exclude  him  from  a  participation  in  that  enter- 
prise  ;  it  is  the  solemn  duty  of  the  jury  to  weigh  it,  and  allow  it  to  have 
its  appropriate  influence. 

Passing  from  this,  the  prisoner  gives  other  evidence,  not  to  show  that  lie 
was  not  in  the  expedition,  but  for  the  purpose  of  showing  that  he  was  in 
another  place,  and  that  he  could  not  have  been  there  unless  the  laws  of 
physical  nature  can  be  changed,  and  a  man  become  capable  of  ubiquity — 
of  being  in  Stamford  and  at  Schlosser  at  the  same  time.  You  will  lend 
an  attentive  ear  to  this  part  of  the  testimony. 

I  first  call  your  attention  to  the  testimony  of  Mr.  Press.  He  was  an 
inn-keeper  at  Niagara,  which  was  the  place  of  residence  of  Alexander 
McLeod.  Press  testifies  that  on  a  particular  occasion  during  the  Canadian 
troubles,  he  went  from  Niagara  to  Chippewa  in  a  waggon — that  he  carried 
up  two  passengers,  whose  names  he  has  given  you. 

He  arrived  in  Chippewa  and  remained  there  until  towards  night ;  that  he 
saw  the  prisoner,  McLeod  there,  who  informed  him,  that  he  was  desirous 
of  going  to  Niagara  with  him.  Some  time  in  the  afternoon,  when  he 
wanted  to  start,  he  could  not  find  McLeod  ;  he  continued  to  wait,  and 
finally  did  find  him  about  dark,  or  a  little  after  ;  he  testifies  that  McLeod 
came  out  of  Davis's.  Witness  had  not  his  horses  at  Davis's,  but  in  a 
yard  opposite.  Where  McLeod  got  in,  witness  cannot  precisely  say  ;  but  thai 
he  did  get  into  the  waggon  with  him,  and  that  he  drove  down  the  river,  over 
a  very  bad  road  ;  for  two  miles  and  a  half,  he  drove  slowly  by  necessity  ; 
that  the  residue  of  the  road  was  better,  though  not  very  good.  He  drove 
on  as  far  as  Stamford,  opposite  the  gate  of  Captain  Morrison,  where  McLeod 
got  out  and  went  towards  the  house,  which  is  the  last  that  witness  saw  of 
him.  It  is  an  important  point  for  you  to  determine,  whether  this  was 
the  night  of  the  twenty-ninth  of  December,  or  another  night.  If  any 
other,  it  breaks  the  chain  of  evidence.     In  relation  to  its  being  that  night 

45 


IP 


354 


GOULD  S   REPORTER. 


Press  testifies,  that  he  had  :i  partner  at  the  time  ;  that  he  kept  a  cash-book  ; 
lliat  his  entries  were  made  consecutively ;  that  he  finds  an  entry  of  the 
five  dollars,  received  from  the  two  persons  for  their  passage  to  Chippewa, 
of  that  date.  lie  was  cross-examined  with  much  ingenuity,  and  at  great 
length,  whether  this  entry  might  not,  possibly,  have  been  made  afterwards, 
fie  says  no,  the  entries  are  consecutive,  and  this  entry  is  in  its  place  upon 
fhat  very  day  ;  independently  of  this,  he  says  he  has  reason  to  know  it  was 
the  same  day  before  the  night  in  which  the  Caroline  was  destroyed. 

In  relation  to  times  and  dates  it  is  true,  that  the  human  mind  is  so  con- 
stituted that  it  is  most  difficult  to  fix  with  certainty,  at  what  period  of  time 
a'     given  event  transpired. 

We  must  have  reference  to  some  epoch,  or  event,  standing  in  bold  re- 
lief, around  which  others  are  made  to  cluster.  If  any  of  you,  gentlemen,  had 
Ji  house  burned  on  a  particular  day,  other  events  happening  to  occur  the 
same  morning  or  night,  would  live  long  in  your  memories ;  so  too  the  des- 
truction of  the  Caroline,  from  that  time  forward,  will  serve  as  an  epoch, 
for  all  who  felt  an  interest  in  the  politidal  agitation  of  the  times,  upon  both 
sides,  by  which  to  bring  to  recollection  minor  circumstances  and  events. 
li  is  an  epoch  which  will  be  remembered  as  having  given  rise  to  the  pre- 
sent trial,  and  which  has  been  the  occasion  of  requiring  your  attendance 
and  services,  at  the  present  trial.  It  is  an  event  which  will  live  in  the 
memory  of  all  who  witnessed  it,  and  who  were  made  acquainted  with  the 
circumstances ;  and  it  is  therefore  submitted  to  you,  whether  Mr.  Press  is 
warranted  in  speaking  with  such  certainty  as  to  the  particular  day.  He 
says,  he  knows,  from  other  circumstances,  independently  of  the  fact  that 
he  had  made  a  written  memorandum,  that  he  started  from  Chippewa  on  the 
evening  of  the  twenty-ninth  of  December. 

Captain  Stocking,  who  was  on  service,  having  command  of  a  troop  ot 
<lragoons,  whoso  residence  is  at  Niagara,  and  who  is  a  particular  friend  ot 
Mr.  Press,  says  that  Mr.  Press  called  at  his  quarters,  in  Chippewa,  on  the 
twenty-ninth  of  December,  and  dined  with  him  ;  feeling  bound  to  show  the 
ordinary  courtesies  to  his  neighbor,  who  was  a  comparative  stranger  there,' 
he  took  a  walk  with  him,  up  the  margin  of  the  Niagara,  and  looking  across 
the  stream,  they  saw  the  steamboat  Caroline  making  her  first  trip.  He  is 
entirely  certain  that  this  was  the  first,  and  only  time,  that  he  ever  saw  her 
crossing  there.  Indeed  she  never  made  trips  there,  but  one  day.  She 
came  down  in  the  morning,  and  met  her  fate  at  night.  If  Captain  Stock- 
ing is  right,  and  Press  is  right,  that  the  very  day  on  which  Press  alleges 
himself  to  have  been  there,  and  the  evening  on  which  he  took  McLeod  to 
Stamford,  was  the  evening  of  the  twenty-ninth  of  December,  much  doubt 
will  be  removed  from  your  minds.  But  you  now  are  met  with  a  difficulty, 
and  it  is  a  difficulty  which  you  must  solve. 

The  proposition  of  the  defence  is  this ;  that  Press  left  McLeod  at  Mor- 
rison's ;  that  McLeod  staid  all  night  there,  and  in  the  morning  was  in- 
formed of  the  destruction  of  the  Caroline ;  that  he  mounted  his  horse  and 
rode  to  Chippewa  ;  while  riding  up  the  Niagara  river,  he  fell  in  with  Mr. 
Gilkinson  ;  that  they  passed  through  Chippewa,  and  continued  up  the  river  ; 
that  a  cannon  ball  discharged  from  Navy  Island  reached  the  shore  ;  that 
a  soldier  picked  it  up  and  handed  it  to  McLeod ;  that  McLeod  went  back 
the  same  day  and  carried  it  along  as  a  trophy. 

Now  for  the  difficulty:  McLeod,  before  'Squire  Bell,  says,  that  he 


MCLEOD  S   TRIAL. 


355 


sh-book  ; 
ry  of  the 
Ihippewa, 
nt  great. 
Icrwards. 
lace  upon 
ow  it  was 
cd. 

is  so  Gon- 
ad of  time 

n  bold  rc- 
cmcn,  had 
occur  the 
)o  the  des- 
an  epoch, 
upon  botli 
md  events, 
to  the  pre- 
attcndance 
live  in  the 
-d  with  the 
[r.  Press  is 
•  day.     He 
he  fact  that 
)cwa  on  the 

[  a  troop  ot 
ar  friend  ot 
3wa,  on  the 
;o  show  the 
ngcr  there; 
king  across 
rip.  He  is 
fer  saw  her 

day.  She 
(tain  Stock- 
ess  alleges 

McLcod  to 
much  doubt 

a  difficulty, 

!od  at  Mor- 
ing  was  in- 
s  horse  and 
in  with  Mr. 
)  the  river ; 
shore  ;  that 
I  went  back 

ys,  that  he 


mounted  his  horse  and  rode  him ;  and  on  a  second  examination,  he  says 
tliat  he  took  his  horse  and  led  hi"). 

The  Morrison  family,  so  far  as  they  speak  and  know,  testify  to  his 
having  a  horse.  Archibald  says  that  he  put  out  the  liorse  ;  whether  any 
one  saw  that  ho  rode  there  on  horseback,  does  not  appear. 

Press  did  not  testify  that  he  had  a  horse.  He  was  (juestioned  by  tlie 
Attorney. General,  "Did  McLeod  have  any  thing  along  with  him?  "  "If  he 
had  had  a  horse,  would  you  not  have  observed  it  ! "'  "Certainly  I  should." 
Such  was  the  statement  of  this  witness,  from  his  belief  and  recollection — 
that  there  was  no  horse  led.  It  would  seem  singular  that  a  horse  should 
be  attached  to  the  back  part  of  his  wagon  and  he  ncjt  know  it,  though  it 
would  be  possible  ;  and  whether  the  other  evidenci;  shows  it  probable,  you 
are  to  determine — that  being  an  incident,  merely,  and  not  a  material  part 
of  the  testimony. 

That  is  the  argument  of  the  prisoner's  counsel,  and  you  are  to  judge 
of  its  strength  and  probability,  and  whether  there  is  any  other  mode  ot" 
explanation.     It  is  before  you  ;  and  I  leave  it  for  you  to  determine. 

When  we  pass  from  this  period  of  time,  and  get  in  front  of  Mr.  Mor- 
rison's cottage,  we  find  him  walking  up  to  the  house  and  entering  about 
eight  o'clock  in  the  evening.  He  went  in  there,  for  he  was  on  familiar 
terms  with  the  family.  He  had  a  great  deal  of  business  to  do  in  the  line 
of  his  official  duty,  and  therefore  kept  a  horse  at  Mr.  Morrison's,  it 
is  stated  that  he  went  in  and  spoke  to  Archy  to  put  out  his  horse.  All 
the  members  of  the  family,  four  in  number,  swear  that  he  came  there  that 
night — that  he  was  there  at  tea.  All  except  the  young  man  swear  thai  he 
was  there,  up  to  a  period  of  time  between  nine  and  ten  o'clock  ;  about 
this  the  boy  cannot  say ;  but  Mr.  Morrison  and  his  wife  both  say  that  he 
was  there  afterwards  till  twelve  o'clock,  and  after  that  they  all  retired  to 
bed.  A  cot-bed  was  made  up  in  the  parlor  for  McLeod.  His  boots,  which 
were  wet  the  evening  previous  and  had  been  placed  by  the  stove,  or  kitchen 
fire,  were  dry  in  the  morning.  He  was  seen  getting  up  in  the  morning, 
and  when  but  partially  dressed. 

Mr.  Morrison  was  called  to  the  gate  by  Col.  Cameron,  an  intimate  friend, 
with  whom  he  had  served  in  the  peninsular  war,  in  Europe,  under  the  Duke 
of  Wellington.  Col.  Cameron  had  come  down  from  Chippewa  with  intelli- 
gence that  the  Caroline  was  destroyed  ; — he  had  obtained,  and  he  there  pre- 
sented to  Mr.  Morrison,  as  a  trophy,  a  small  piece  of  painted  wood,  which 
had  been  part  of  the  Caroline.  He  (Mr.  Morrison)  took  it  to  the  house, 
sawed  off  a  piece,  and  carried  back  the  remainder.  He  took  this  piece 
of  wood  and  showed  it  to  McLeod,  saying,  "  what  do  you  think  has  happened  ? 
The  Caroline  is  destroyed."  McLeod  says,  "  is  it  possible ! — Captain, 
where  is  Archy  ?  Send  for  my  horse ;  I  will  go  up  immediately."  He 
however  consented  to  wait  for  breakfast,  and  then  started  on  his  way. 

Then  comes  the  next  witness — Mr.  Gilkinson — a  resident  of  Niagara, 
who  knew  McLeod  well.  He  was  a  volunteer  at  Chippewa;  but  as  they 
were  very  full  at  Chippewa,  he  went  to  sleep  at  Stamford,  below  Morrison's. 
He  came  along  in  the  morning  and  overtook  McLeod  before  he  reached  the 
Falls  ;  they  went  along  together  up  to  Chippewa ;  and  he  says  he  can  state 
with  absolute  certainty  that  this  was  the  morning  of  the  30th  of  December  ; 
that  he  was  thus  on  his  way  from  Stamford,  and  that  he  thus  overtook  and 
rode  with  McLeod  to  Chippewa ;  that  without  dismounting  they  rode  up  the 
Niagara  river,  till  they  were  opposite  Navy  Island  ;  that  the  batteries  on 


..-«;■ 


:^iil 


Ml 
-I  I 


iifl 


111,, 

i 


J'  I 


m 


356 


GOULDS    REPORTER. 


the  island  were  opened  upon  them ;  that  a  cannon  ball  lodged  in  the 
bank  near  them  ;  that  one  of  the  soldiers  ran  there,  seized  it,  and  gave 
it  to  McLeod,  and  ho  has  since  seen  it  in  his  possession.  , 

The  witness  Sears  says  that  he  also  was  up  there  about  this  hour ;  that 
he  saw  McLeod  and  another  ride  along,  and  witnessed  the  firing  from  the 
Island. 

Now  this  is  not  the  whole  of  the  testimony  upon  the  subject  of  his  coming 
up  on  that  occasion. 

Judge  McLean,  whoso  testimony  you  will  bear  in  mind,  was  engaged  by 
the  then  acting  District- Attorney  of  the  northern  district  of  the  state  of 
New  York,  to  go  to  the  Canada  side  on  a  confidential  mission  to  Colonel 
McNab.  He  went  to  Chippewa,  and  called  on  Colonel  McNab,  who 
ushered  him  into  his  quarters,  and  then  excused  himself  during  the  night. 
The  witness  says  he  hoard  before  morning  of  the  blazing  Caroline  passing 
over  the  rapids  and  over  the  cataract.  He  knew  McLeod,  having  seen  him 
but  a  few  days  previous  at  Buffalo,  where  McLeod  had  got  into  some  dif. 
ficulty ;  and  the  witness  (McLean)  had  aided  him  in  making  his  escape. 
The  next  morning  he  got  up,  and  at  some  nine  or  ten  o'clock  started  off 
down  the  river ;  and  near  the  Pavilion  he  met  McLeod  on  horseback 
riding  towards  Chippewa. 

This  is  the  aggregate  of  the  evidence  on  this  branch  of  the  subject. 
The  testimony  of  the  Morrisons,  and  the  declarations  which  McLeod  made 
on  examination,  have  been  submitted  to  you,  and  criticised  by  the  learned 
Attorney-General  with  great  ability.  If  he  has  satisfied  you  that  these 
Morrisons  are  mistaken  as  to  the  dates,  and  in  relation  to  this  great  epoch, 
then  the  defence  vanishes.  But  if  it  be  true,  that  though  tliey  have  been 
mistaken  in  relation  to  some  things  ;  that  though  the  old  gentleman  had  not 
heard  that  the  Caroline  was  coming  down  to  engage  in  carrying  arms  and 
munitions  of  war,  and  the  young  lady  had  heard  it ;  though  they  might 
have  confounded  that  which  McLeod  said  at  a  subsequent  time  with  what 
then  took  place  ;  and  still  in  relation  to  this  great  question  be  right — though 
wrong  as  to  other  matters — for  instance,  that  instead  of  the  second  it  was 
in  fact  on  the  fourth  of  January  that  McLeod  was  there  the  second  time  ; 
if  you  believe  that  they  were  uncertain  in  their  recollection  as  to  this,  and 
yet  quite  right  upon  the  great  question  as  to  whether  McLeod  was  at  their 
house  on  the  night  when  the  Caroline  was  burnt ; — if,  upon  that  point  you 
determine  that  they  are  right,  then  there  is  an  end  of  this  case. 

But  if  you  be'ieve  that  their  testimony  has  been  so  successfully  attacked, 
that  they  have  jeen  shown  to  be  guilty  of  wilful  or  intentional  misrepre- 
sentation, so  that  you  cannot  believe  them  in  relation  to  this  great  ques- 
tion— this  great  epoch,  which  stands  out  so  prominently  from  other  por- 
tions of  time — if  in  that  light  they  are  not  corroborated,  or  if  it  appear  to 
you  that  this  evidence  is  all  founded  in  mistake  ;  that  some  other  portion 
of  time  has  been  confounded  in  the  recollection  of  these  witnesses  with  the 
period  in  question — I  repeat,  that  you  will  in  the  one  case  set  it  aside 
altogether,  as  unsatisfactory  and  unworthy  of  belief,  and  in  the  other,  you 
will  detract  from  it  so  much  as  deserves  to  be  detracted  ;  and  if  the  whole, 
you  will  set  aside  the  whole. 

It  is  true  that  Colonel  Cameron  corroborates  the  statement  of  the  Mor- 
rison family.  He  came  along  and  had  an  interview  with  his  old  friend 
whom  he  had  known  in  other  days.  So  far  as  that  is  corroboration,  it  is 
worthy  of  your  attention.    You  are  to  consider  this,  and  then  say  whether 


ancc, 


ed  in  the 
and  gave 

lour ;  that 
I  from  the 

lis  coming 

iigaged  by 
ic  state  of 
to  Colonel 
:Nab,  who 
;  the  night, 
me  passing 
g  seen  him 
J  some  dif. 
his  escape, 
started  ofl' 
horseback 

he  subject. 
Leod  made 
the  learned 

that  these 
;rcat  epoch, 

have  been 
nan  had  not 
g  arms  and 

they  might 
!  with  what 
;ht — though 
cond  it  was 
cond  time  ; 
to  this,  and 
was  at  their 
it  point  you 


ly  attacked, 
1  misrepre- 
great  ques- 
other  por- 
it  appear  to 
ther  portion 
ses  with  the 
set  it  aside 
s  other,  you 
f  the  whole, 

of  the  Mor- 
9  old  friend 
)ration,  it  is 
say  whether 


Mcleod's  trial. 


357 


all  this  has  satisfied  you — that  the  case  made  out  on  the  part  of  the  people 
is  brought  together  and  bound  up  in  perjury,  oi  consists  in  some  great  and 
unexplained  mistake  ;  in  either  case  you  will  acquit  him. 

But  this  is  not  all ;  in  the  defence  upon  a  criminal  case,  you  arc  not 
required  to  be  absolutely  sure.  It  is  enough  if  the  prisoner  has  presented 
such  a  case,  that  as  to  his  guilt  or  innocence  there  is  a  reasonable  doubt ; 
because  the  humane  laws  of  this  land  take  no  man's  life  imless  upon  clear 
and  satisfactory  evidenf*-.  It  is  a  portion  of  our  law,  and  it  is  the  glory 
of  it,  that  while  it  demands  obedience  to  the  extent  of  death  its'-lf,  it  n(  vtT 
proceeds  to  this  last  extreme  ;  it  never  divides  the  living  i'rum  t!io  dead  ; 
it  never  consigns  an  individual  to  the  tomb,  unless  there  is  iirefragable 
evidence  to  induce  a  jury  to  believe,  not  that  there  is  a  mere  prepondir- 
ance,  but  that  it  is  so  overwhelming  as  to  bear  down  the  defence,  so  that 
there  is  no  reasonable  doubt  of  the  existence  of  the  crime,  and  that  it  is 
an  imperative  duty  of  the  jury  to  consign  him  to  the  grave. 

You  arc  bound  to  do  this  as  well  in  the  performance  of  tiiat  duty  which 
you  owe  to  your  God,  as  of  that  which  you  owe  to  your  country,  to  the 
prisoner,  and  yourselves ;  all  have  a  right  to  demand  it  in  passing  upon 
this  great  issue  ;  this  feature  of  the  law  is  the  great  shield,  the  great  a>gis 
which  the  law  has  thrown  around  and  over  the  heads  of  those  who  are 
brought  to  the  bar  of  justice  for  crime. 

It  is  then  with  you.  I  have  thus  gone  through  the  great  mass  of  evi- 
dence in  this  case,  much  of  it  not  in  detail,  as  it  would  have  occupied 
much  time  to  do  so ;  yet  I  have  gone  through  the  great  leading  features 
of  the  case  ;  and  have  presented  them  to  you,  together  with  the  principles 
by  which  you  are  to  be  governed,  according  to  the  best  of  my  ability. 
Now  my  duty  is  performed  ;  your  duty — and  it  is  the  highest  duty  which 
you  can  ever  be  called  to  discharge — the  most  solemn  duty  which  your 
country  ever  reposes  in  her  citizens — your  duty  is  about  to  commence. 
You  are  to  take  this  subject  into  your  deliberate  consideration,  weigh  and 
decide  upon  every  portion  of  it ;  call  into  exercise  your  best  powers  of 
judgment ;  free  your  minds  from  bias,  if  any  exist :  you  are  to  approach 
the  consideration  of  this  question,  looking  at  it  through  the  testimony 
which  you  have  heard  upon  the  stand,  and  that  alone  ;  discarding  all 
considerations  which  have  been  held  out  by  counsel,  all  rumors  which 
may  have  reached  your  ears  ;  every  thing  but  the  polar  star  of  looking  to 
the  evidence  to  ascertain  what  is  the  truth.  When  you  come  to  your  de- 
cision, and  determine  where  the  truth  is,  let  it  be  with  an  independence 
that  shall  do  honor  to  a  jury — with  that  impartiality  which  your  country 
expects  at  your  hands.  With  a  single  eye  to  the  demands  of  justice,  pro- 
nounce your  verdict :  and  when  you  have  pronounced  it  in  the  best  exer- 
cise of  your  judgment,  and  of  this  great  duty  which  you  have  to  perform, 
I  trust  that  all  those  who  have  witnessed  this  trial,  and  the  manner  in 
which  it  has  been  conducted — all  those  who  have  heard  the  able  argu- 
ments which  have  been  submitted  by  counsel,  and  the  patience  with  which 
you  have  heard  and  drunk  in  the  evidence,  as  portion  after  portion  of  it 
has  been  unfolded  before  you — that  all  those  who  have  seen  your  anxious 
endeavors  to  arrive  at  the  truth,  will  be  satisfied. 

If  you  shall  believe  that  this  man  is  guilty  of  murder,  then,  fearless  of 
consequences,  whatever  those  consequences  may  be — though  they  shall 
wrap  your  country  in  a  flame  of  war — whatever  the  result,  look  with 


M 


if 


I  t 


(■V  K, 


ili;| 


m 


;»-<{• 


358 


GOULDS    REPORTER. 


a  single  eye  to  truth,  and  a  hand  firm  to  duty  ;  look  to  the  (jod  of  Justice, 
and  say  whether  the  prisoner  be  guilty  or  not. 

If  he  has  .successfully  met  thix  charge  and  dcfundod  himself  against  il, 
then  there  is  another  duty  tu  perform,  irrespective  of  any  rumors  oi 
charges ;  irrespective  of  any  con.siderations  which  may  b(!  held  out  to 
you,  or  which  may  have  entered  your  minds  or  exercised  an  influence 
over  you — with  the  same  fearless  intrepidity  pronounce  that  he  in  not 
guilty. 

Now,  gentlemen,  I  commit  to  you  this  great  case  with  its  solemn  duties, 
and  the  rights  of  your  country  ;  and  may  Uie  God  of  all  justice  and  truth 
preside  over  your  deliberations,  and  may  the  verdict  whicli  you  render  be 
in  accordance  with  tlie  foundations  of  his  throne  and  his  government. 


359 


>f  Justice, 

igainst  il, 
nmors  oi 
lid  out  to 
influence 
ho  is  not 

inn  duties, 
and  trutli 
render  be 

unt. 


PUBLIC   DOCUMENTS. 

FROiM  THE 

DEPARTMENT  OF  STATE  OF  THE  UNITED  STATES. 


IV  o.    1. 

Mn.  Fox  TO  Mk.  Webster. 

Washington,  March  12,  1841. 

The  undersiprned,  Her  Britannic  Majesty's  envoy  extraordinary 
and  minister  plenipotentiary,  is  instructed  by  his  Government  to 
make  the  following  official  communicittion  to  the  Government  of"  the 
United  States : 

Her  Majesty's  Government  have  had  under  their  consideration  the 
correspondence  which  took  place  at  Wasliington  in  December  last, 
between  the  United  States  Secretary  of  State,  Mr.  Forsyth,  and  th(! 
imdersigned,  comprising  two  official  letters  from  the  undersigned 
to  Mr.  Forsyth,  dated  the  13th  and  29th  of  December,  and  two  offi- 
cial letters  from  Mr.  Forsyth  to  the  undersigned,  dated  the  2Gth  and 
30th  of  the  same  month,  upon  the  subject  of  the  arrest  and  imprison- 
ment of  Mr.  Alexander  McLeod,  of  Upper  Canada,  by  the  authorities 
of  the  State  of  New  York,  upon  a  pretended  charge  of  arson  and 
murder,  as  having  been  engaged  in  the  capture  and  destruction  of 
the  steamboat  Caroline,  on  the  29th  of  December,  1837. 

The  undersigned  is  directed,  in  the  first  place,  to  make  known  to 
the  Government  of  the  United  States  that  her  Majesty's  Government 
entirely  approve  of  the  course  pursued  by  the  undersigned  in  thai 
correspondence,  and  of  the  language  adopted  by  him  in  the  official 
letters  above  mentioned. 

And  the  undersigned  is  now  instructed  again  to  demand  from  the 
Government  of  the  United  States,  formally,  in  the  name  of  the  Brit- 
ish Government,  the  immediate  release  of  Mr.  Alexander  McLeod. 

The  grounds  upon  which  the  British  Government  make  this  de- 
mand upon  the  Government  of  the  United  States  are  these  :  that  tho 
transaction  on  account  of  which  Mr.  McLeod  has  been  arrested,  and 
is  to  be  put  upon  his  trial,  was  a  transaction  of  a  public  character, 
planned  and  executed  by  persons  duly  empowered  by  her  Majesty's 
colonial  authorities  to  take  any  steps  and  to  do  any  acts  which  might 
be  necessary  for  the  defence  of  her  Majesty's  territories  and  for  the 
protection  of  her  Majesty's  subjects  ;  and  that  consequently  those 
subjects  of  her  Majesty  who  engaged  in  that  transaction  were  per- 
forming an  act  of  public  duty  for  which  they  cannot  be  made  per- 
sonally and  individually  answerable  to  the  laws  and  tribunals  of  any 
foreign  country. 


1. 


^-<h  ■ 


If. 


;  ":X^k 


.%() 


(lOULD  8   HEPORTER. 


The  tmitsuction  in  (|iicsti<)ri  iiiuy  have  been,  oh  hor  Mnjesty'H  fJov- 
ernnient  are  of  itpinion  that  it  was,  a  jiiHtiliahle  employment  of  foree 
lor  the  purpose  of  defending  the  Ikititili  territory  from  the  unprtt- 
voUed  altaciv  of  a  band  of  Uritish  rebels  and  American  pirales,  who, 
iisivino'  been  permitted  to  arm  and  or^^anizc  tlicniHelves  williin  the 
u-n  ilory  of  the  United  States,  iiad  actually  invaded  and  oceupied  a 
|..>j'lion'  of  the  territory  of  her  Majesty  ;  or  it  may  have  been,  «h  al- 
icjfed  by  Mr.  Forsyth,  in  his  note  to  the  undersigned  of  the  'itlth  of 
December,  "•  a  must  nnjustihable  invasion  in  time  of  peace  of  the  ter- 
ritory of  the  United  States."  Uut  this  is  n  ([iiestion  especially  of  a 
political  and  international  kind,  which  can  be  discussed  and  settled 
only  between  the  two  Governments,  and  which  the  courts  of  justice 
of  the  State  of  New  York  cannot  by  possibility  have  any  means  of 
judging  or  any  right  of  deciding. 

It  would  be  contrary  to  tlic  Jinivcrsal  practice  of  civilized  notions 
to  fix  individual  responsibility  upon  persons  who,  with  the  sanction 
or  by  the  orders  of  the  constituted  authorities  of  a  State,  engaged  in 
military  or  naval  cnteryirises  in  their  country's  cauRe  ;  and  it  is  ob* 
vious  that  the  introduction  of  such  a  principle  would  aggravate  be- 
yond measure  the  miseries,  and  would  frightfully  increase  the  de- 
moralizing effects  of  war,  by  mixing  up  with  national  exasperation 
the  ferocity  of  personal  passions,  and  the  cruelty  and  bitterness  of 
individual  revenge. 

Her  Majesty's  Government  cannot  believe  that  the  Government  of 
the  United  States  can  really  intend  to  set  an  example  so  fraught  with 
evil  to  the  community  of  nations,  and  the  direct  tendency  of  which 
must  be  to  bring  back  into  the  practice  of  modern  war,  atrocities 
which  civilization  and  Christianity  have  long  since  banished. 

Neither  can  her  Majesty's  Government  admit  for  a  moment  the 
validity  of  the  doctrine  advanced  by  Mr.  Forsyth,  that  the  Federal 
Government  of  the  United  States  has  no  power  to  interfere  in  the 
matter  in  question,  and  that  the  decision  thereof  must  rest  solely 
and  entirely  with  the  State  of  New  York. 

With  the  particulars  of  the  internal  compact  which  may  exist  be- 
tween the  several  States  that  compose  the  Union,  foreign  Powers 
have  nothing  to  do  :  the  relations  of  foreign  Powers  are  with  the 
aggregate  Union  ;  that  Union  is  to  them  represented  by  the  Federal 
Government ;  and  of  that  Union  the  Federal  Government  is  to  them 
the  only  organ.  Therefore,  when  a  foreign  Power  has  redress  to 
demand  for  a  wrong  done  to  it  by  any  State  of  the  Union,  it  is  to  the 
Federal  Government,  nnd  not  to  the  separate  State,  that  such  power 
must  look  for  redress  for  that  wrong.  And  such  foreign  Power  can- 
not admit  the  plea  that  the  separate  State  is  an  independent  body 
over  which  the  Federal  Government  has  no  control.  It  is  obvious 
that  such  a  doctrine,  if  admitted,  would  at  once  go  to  a  dissolution 
of  the  Union  as  far  as  its  relations  Avith  foreign  Powers  are  con- 
cerned ;  and  that  foreign  Powers  in  such  case,  instead  of  accrediting 
diplomatic  agents  to  the  Federal  Government,  Avould  send  such 
agents  not  to  that  Government,  but  to  the  Government  of  each  sep- 
arate State ;  and  would  make  their  relations  of  peace  and  war 
with  each  State  depend  upon  the  result  of  their  separate  intercourse 


MCLCOD'a   TRIAL 


:?r.  I 


ty'H  fiOV- 
t  of  forrc 
u"   utiprii- 
ilCH,  wlio, 
-illiiit  the 
cciipieil  ii 
it'll,  ns  iil- 
e  "ititli  of 
)f  the  tcr. 
uiiilly  of  ii 
nd  KCtllcd 
of  justice 
means  of 

ed  nations 
3  Hanction 
snpnged  in 
id  it  is  ob- 
rravaie  be- 
se  the  de- 
lasperation 
terness  of 

srnment  of 
aught  with 
y  of  which 
atrocities 
ed. 

loment  the 
lie  Federal 
rfere  in  the 
rest  solely 

ly  exist  be- 
gn  Powers 

with  the 
he  Federal 
is  to  them 
redress  to 
it  is  to  the 
such  power 
Power  can- 
ndent  body 

is  obvious 
dissolution 
:s  are  con- 
accrediting 
send  such 
f  each  sep- 
e  and  war 
intercourse 


vo 


with  such  State,  without  reference  to  the  rclutions  tlioy  iniirht  hn 
with  the  rest. 

Her  Majesty's  Govornnicnt  apprehend  tliiit  the  above  is  not  the 
conclusion  at  which  the  Government  of  the  United  States  intend  to 
arrive;  yet  such  is  the  conclusion  to  which  the  arguments  that  have 
been  advanced  by  Mr.  Forsyth  necessarily  loail. 

But,  be  that  as  it  may,  her  Majesty's  Government  formally  de- 
mand, upon  the  grounds  already  stated,  the  iiiunediate  rt'lt^asp  of 
Mr.  McLeod  ;  ond  iier  Majesty's  Government  entreat  the  l'i(?sidcnt 
of  the  United  States  to  take  into  his  most  delilturale  consideration 
the  serious  nature  of  the  conse(|uences  which  must  cnsuo  from  a  re- 
jection of  this  demand. 

The  United  States  Government  will  perceive  that,  in  demanding 
Mr.  McLcod's  release,  her  Majesty's  CJovernment  argue  upon  the 
assumption  that  he  was  one  of  the  persons  engaged  in  the  capture 
of  the  steamboat  "  Caroline ;"  but  her  Majesty's  Government  have 
the  strongest  reasons  for  being  convinced  that  Mr.  McLeod  was  not, 
in  fact,  engaged  in  that  transaction  ;  and  the  und(>rsigned  is  here- 
upon instructed  to  say  that,  although  the  circumstance  itself  makes 
no  difference  in  the  political  and  international  question  ut  issue,  and 
although  her  Majesty's  Government  do  not  demand  Mr.  McLeod's 
release  upon  the  ground  that  he  was  not  concerned  in  the  capture  of 
the  "  Caroline,"  but  upon  the  ground  that  the  capture  of  the  "  Caro- 
line" was  a  transaction  of  a  public  character,  for  which  the  persons 
engaged  in  it  cannot  incur  private  and  personal  responsibility  ;  yet 
the  Government  of  the  United  States  must  not  disguise  from  them- 
selves that  the  fact  that  Mr.  McLeod  was  not  engaged  in  the  trans- 
action must  necessarily  tend  greatly  to  inflame  that  national  resent- 
ment which  any  harm  that  shall  be  suflfered  by  Mr.  McLeod  at  the 
hands  of  the  authorities  of  the  State  of  New  York,  will  infallibly  ex- 
cite throughout  the  whole  of  the  British  empire. 

The  undersigned,  in  addressing  the  present  oiHcial  communication, 
by  order  of  his  Government,  to  Mr.  Webster,  Secretary  of  State  of 
the  United  States,  has  the  honor  to  ofTer  to  him  the  assurance  of  his 
distinguished  consideration. 

H.  S.  FOX. 

The  Hon.  Daniel  Webster, 

Secretary  of  State. 


fio.  9. 

Mr.  Webster  to  Mr.  Fox. 

Department  of  State, 

Washington,  April  24,  1841. 
The  undersigned.  Secretary  of  State  of  the  United  States,  has  the 
honor  to  inform  Mr.  Fox,  envoy  extraordinary  and  minister  plenipo- 
tentiary of  her  Britannic  Majesty,  that  his  note  of  the  12th  of  March 
was  received  and  laid  before  the  President. 

46 


ii 


fl 


V     i\ 


'■i 


362 


Gould's  reporter. 


Circumstances  well  known  to  Mr.  Fox  have  necessarily  delayed, 
for  some  days,  the  consideration  of  that  note. 

The  undersigned  has  the  honor  now  to  say,  that  it  has  been  fully 
considered,  and  that  he  has  been  directed  by  the  President  to  address 
to  Mr.  Fox  the  following  reply. 

Mr.  Fox  informs  the  Government  of  the  United  States,  that  he  is 
instructed  to  make  known  to  it,  that  the  Government  of  her  Majesty 
entirely  approve  the  course  pursued  by  him,  in  his  correspondence 
with  Mr.  Forsyth,  in  December  last,  and  the  language  adopted  by 
liim  on  that  occasion  ;  and  that  that  Government  have  instructed  him 
"  again  to  demand  from  the  Government  of  the  United  States,  for- 
mally, in  the  name  of  the  British  Government,  the  immediate  release 
of  Alexander  McLeod  ;"  that  "  the  grounds  upon  which  the  British 
Government  make  this  demand  upon  the  Government  of  the  United 
States,  are  these  :  that  the  transaction  on  account  of  which  McLeod 
has  been  arrested  and  is  to  be  put  upon  his  trial,  was  a  transaction 
of  a  public  character,  planned  and  executed  by  persons  duly  empow- 
ered by  her  Majesty's  colonial  authorities  to  take  any  steps  and  to 
do  any  acts  which  might  be  necessary  for  the  defence  of  her  Majes- 
ty's territories,  and  for  the  protection  of  her  Majesty's  subjects  ;  and 
that  consequently  those  subjects  of  her  Majesty  who  engaged  in  that 
transaction,  were  performing  an  act  of  public  duty  for  which  they 
cannot  be  made  personally  and  individually  answerable  to  the  laws 
and  tribunals  of  any  foreign  country." 

The  President  is  not  certain  that  he  understands,  precisely,  the 
meaning  intended  by  her  Majesty's  Government  to  be  conveyed,  by 
the  foregoing  instruction. 

This  doubt  has  occasioned,  with  the  President,  some  hesitation  ; 
but  he  inclines  to  take  it  for  granted  that  the  main  purpose  of  the  in- 
struction was,  to  cause  it  to  be  signified  to  the  Government  of  the 
United  States,  that  the  attack  on  the  steamboat  "  Caroline"  was  an 
act  of  public  force,  done  by  the  British  colonial  authorities,  and  fully 
recognised  by  the  Queen's  Government  at  home  ;  and  that,  conse- 
quently, no  individual  concerned  in  that  transaction  can,  according 
to  the  just  principle  of  the  laws  of  nations,  be  held  personally  answer- 
able in  the  ordinary  courts  of  law,  as  for  a  private  offence  5  and  that 
upon  this  avowal  of  her  Majesty's  Government,  Alexander  McLeod, 
now  imprisoned,  on  an  indictment  for  murder,  alleged  to  have  been 
committed  in  that  attack,  ought  to  be  released,  by  such  proceedings 
as  are  usual  and  are  suitable  to  the  case. 

The  President  adopts  the  conclusion,  that  nothing  more  than  this 
could  have  been  intended  to  be  expressed,  from  the  consideration, 
that  her  Majesty's  Government  must  be  fully  aware,  that  in  the  United 
States,  as  in  England,  persons  confined  under  judicial  process  can  be 
released  from  that  confinement  only  by  judicial  process.  In  neither 
country,  as  the  undersigned  supposes,  can  the  arm  of  the  Executive 
power  interfere,  directly  or  forcibly,  to  release  or  deliver  the  prisoner. 
His  discharge  must  be  sought  in  a  manner  conformable  to  the  prin- 
ciples of  law,  and  the  proceedings  of  courts  of  judicature.  If  an  in- 
dictment, like  that  which  has  been  found  against  Alexander  McLeod, 
and  under  circumstances  like  those  which  belong  to  his  case,  were 


elayed, 

Ml  fully 
address 

it  lie  is 
Majesty 
ondence 
ipted  by 
ited  him 
;es,   for- 
e  release 
1  British 
!  United 
McLeod 
insaction 
empow- 
3  and  to 
;r  Majes- 
5cts ;  and 
id  in  that 
lich  they 
the  laws 

isely,  the 
eyed,  by 

>sitation  ; 
of  the  in- 


it 


of  the 
was  an 
and  fully 
It,  conse- 
siccording 
y  ansAver- 
and  that 
McLeod, 
ave  been 
oceedings 

than  this 
ideration, 
he  United 
sss  can  be 
[n  neither 

•Executive 

prisoner. 

the  prin- 
If  an  Jn- 

McLeod, 
ase,  were 


MCLEOD  S    TRIAL. 


36  i 


pciidinnr  against  an  individual  in  one  of  the  courts  of  England,  there 
is  no  doubt  that  the  law  officer  of  the  crown  might  enter  a  nolle  pro- 
sequi, or  that  the  prisoner  might  cause  himself  to  be  brought  up  on 
habeas  corpus,  and  discharged,  if  his  ground  of  discharge  should  be 
adjudged  sufficient,  or  that  he  might  prove  the  same  facts  and  insist 
on  tlic  same  defence  or  exemption  on  his  trial. 

All  these  are  legal  modes  of  proceeding,  well  known  to  the  la\v.> 
and  practice  of  both  countries.  But  the  undersigned  does  not  sup- 
pose, that  if  such  a  case  were  to  arise  in  England,  the  power  of  the 
Executive  Gbvernment  could  be  exerted  in  any  more  direct  manner. 
Even  in  the  case  of  ambassadors,  and  other  public  ministers,  whose 
right  of  exemption  from  arrest  is  personal,  requiring  no  fact  to  be 
ascertained  but  the  mere  fact  of  diplomatic  character,  and  to  arrest 
whom  is  sometimes  made  a  highly  penal  offence,  if  the  arrest  be  ac- 
tually made,  it  must  be  discharged  by  application  to  .the  courts  of 
law.  • 

It  is  understood  that  Alexander  McLeod  is  holden  as  well  on  civil 
as  on  criminal  process,  for  acts  alleged  to  have  been  done  by  him,  in 
the  attack  on  the  "  Caroline  ;"  and  hi:i  defence,  or  ground  of  acquit- 
tal, must  be  the  same  in  both  cases.  And  this  strongly  illustrates, 
as  the  undersigned  conceives,  the  propriety  of  the  foregoing  observ- 
ations ;  since  it  is  quite  clear  that  the  Executive  Government  can- 
not interfere  to  mrest  a  civil  suit,  between  private  parties,  in  any 
stage  of  its  progress  ;  but  that  such  suit  must  go  on  to  its  regu!r.r 
judicial  termination.  If,  therefore,  any  course,  different  from  such 
as  have  been  now  mentioned,  was  in  contemplation  of  her  Majesty's 
Government,  something  would  seem  to  have  been  expected,  from  the 
Government  of  the  United  States,  as  little  conformable  to  the  Ir.v.s 
and  usages  of  the  English  Government  as  to  those  of  the  United 
Str.fes,  and  to  Avhich  this  Government  cannot  accede. 

The  Government  of  the  United  States,  therefore,  acting  upon  the 
presump*.ion,  which  it  readily  adopted,  that  nothing  extraordinary  or 
unusual  was  expected  or  requested  of  it,  decided,  on  the  reception 
of  Mr.  Fox's  note,  to  take  such  measures  as  the  occasion  and  its  own 
duty  appeared  to  recjuire. 

In  his  note  to  Mr.  Fox,  of  the  26th  of  December  last,  Mr.  Forsyth, 
the  Secretary  of  State  of  the  United  States,  observes,  that  "  if  the 
destruction  of  the  'Caroline'  was  a  puMic  act,  of  persons  in  her  Ma- 
jesty's service,  obeying  the  order  of  their  superior  authorities,  this 
fact  has  not  been  before  communicated  to  the  Go»^ernment  of  the 
United  States  by  a  person  authorized  to  make  the  admission  ;  and  it 
will  be  for  the  court  which  has  taken  cognizance  of  the  offence  with 
which  Mr,  McLeod  is  charged,  to  dof 'f^e  upon  its  validity  when  le- 
gally established  before  it."  And  adds,  "the  President  deems  this 
to  be  a  proper  occasion  to  remind  the  Government  of  her  Britannic 
Majesty,  that  the  case  of  the  '  Caroline'  has  been  long  since  brought 
to  the  attention  of  her  Majesty's  principal  Secretary  of  State  for  For- 
eign Afi'airs  ;  who,  up  to  this  day,  has  not  communicated  its  decision 
thereupon.  And  it  is  hop'tl  Jiat  the  Government  of  her  Majesty 
will  perceive  the  importance  of  no  longer  leaving  the  Government 
of  the  United  States  uninformed  of  its  views  and  intentions  upon  a 


n 

1 

■ 

1 

1 

"1 

;■ 

1 

( 

1 

! 

;i' 
I 

■ill 


Me    U 

m  - 


fi: 


.§ 


364. 


uOULD  S   REPORTER. 


subject  which  has  naturally  produced  much  exasperation,  and  which 
has  led  to  such  grave  consequences." 

The  communication  of  the  fact,  that  the  destruction  of  the  "  Caro- 
was  an  act   of  public  force,  by  the  British  authorities,  being 


ime 


formally  made  to  the  Government  of  the  United  States,  by  Mr.  Fox's 
note,  the  case  assumes  a  decided  aspect. 

The  Government  of  the  United  States  entertains  no  doubt  that, 
after  this  avowal  of  the  transaction,  as  a  public  transaction,  author- 
ized and  undertaken  by  the  British  authorities,  individuals  concerned 
in  it  ought  not,  by  the  principles  of  public  law,  and  the  general  usage 
of  civilized  States,  to  be  holden  personally  responsible  in  the  ordi- 
nary tribunals  of  law,  for  their  participation  in  it.  And  the  Presi- 
dent presumes  that  it  can  hardly  be  necessary  to  say  that  the  Ame- 
rican people,  not  distrustful  of  their  ability  to  redress  public  wrongs, 
by  public  means,  cannot  desire  the  punishment  of  individuals,  when 
the  act  complained  of  is  declared  to  have  been  an  act  of  <he  Govern- 
ment itself. 

Soon  after  the  date  of  Mr.  Fox's  note,  an  instruction  was  given 
to  the  Attorney  General  of  the  United  States,  from  this  Depart- 
ment, by  direction  of  the  President,  which  fully  sets  forth  the  opi- 
jiions  of  this  Government  on  the  subject  of  McLeod's  imprison- 
ment, a  copy  of  which  instruction  the  undersigned  has  the  honor 
herewith  to  enclose. 

The  indictment  against  McLeod  is  pending  in  a  State  court,  but 
his  rights,  whatever  they  may  be,  are  no  less  safe,  it  is  to  be  pre- 
sumed, than  if  he  were  holden  to  answer  in  one  of  the  courts  of  this 
Government. 

He  demands  immunity  from  personal  responsibility  by  virtue  of 
the  law  of  nations,  and  that  law  in  civilized  States  is  to  be  respected 
in  all  courts.  None  is  either  so  high  or  so  low  as  to  escape  from  its 
authority  in  cases  to  which,  its  rules  and  principles  apply. 

This  Department  has  been  regularly  informed  by  his  Excellency 
the  Governor  of  the  State  of  New  York,  that  the  Cliief  Justice  of 
that  State  was  assigned  to  preside  at  the  hsaring  and  trial  of 
McLeod's  case,  but  that,  owing  to  some  error  or  mistake  in  the  pro- 
cess of  summoning  the  jury,  the  hearing  was  necessarily  deferred. 
The  President  regrets  this  occurrence,  as  he  has  a  desire  for  a  speedy 
disposition  of  the  subject.  The  council  for  McLeod  have  requested 
authentic  evidence  of  the  avowal  by  the  British  Government  of  the 
attack  on  and  destruction  of  the  "  Caroline,"  as  acts  done  under  its 
authority,  and  such  evidence  will  be  furnished  to  them  by  this  De- 
partment. 

It  is  understood  that  the  indictment  has  been  removed  into 
the  Supreme  Court  of  the  State  by  the  proper  proceeding  for  that 
purpose,  and  that  it  is  now  competent  for  McLeod,  by  the  ordi- 
nary process  of  habeas  corpus,  to  bring  his  case  for  hearing  before 
that  tribunal. 

The  undersigned  hardly  needs  to  assure  Mr.  Fox,  that  a  tribunal 
so  eminently  distinguished  for  ability  and  learning  as  the  Supreme 
Court  of  the  State  of  New-York,  may  be  safely  relied  upon  for  the 
just  and  impartial  administration  of  the  law  in  this  as  well  ai  in 


MCLEOD  S    TRIAL. 


361 


ved   into 

for  that 

lie    ordi- 

g  before 

tribunal 
;-  ipreme 

for  the 
rl>   at  in 


other  cases ;  and  the  undersif^ned  repeats  the  expression  of  the  de- 
sire of  this  Government  that  no  delay  may  be  suflered  to  take  place 
in  these  proceedings  which  can  be  avoided.  Of  this  desire,  Mr.  Fox 
will  see  evidence  in  the  instructions  above  referred  to. 

The  undersigned  has  now  to  signify  to  Mr.  Fox  that  the  Govern- 
ment of  the  United  States  has  not  changed  the  opinion  which  it  has 
heretofore  expressed  to  her  Majesty's  Government  of  the  character 
of  the  act  of  destroying  the  "  Caroline." 

It  does  not  think  that  that  transaction  can  be  justified  by  any  rea- 
sonable application  or  construction  of  the  right  of  self-defence  un- 
der the  laws  of  nations.  It  is  admitted  that  a  just  right  of  self- 
defence  attaches  always  to  nations  as  well  as  to  individuals,  and  is 
equally  necessary  for  the  preservation  of  both.  But  the  extent  of 
this  right  is  a  question  to  be  judged  of  by  the  circumstances  of  each 
particular  case,  and  when  its  alleged  exercise  has  led  to  the  com- 
mission of  hostile  acts  within  the  territory  of  a  power  at  peace,  no- 
thing less  than  a  clear  and  absolute  necessity  can  afford  ground  of 
justification.  Not  having  up  to  this  time  been  made  acquainted  with 
the  views  and  reasons  at  length,  which  have  led  her  Majesty's  Gov- 
ernment to  think  the  destruction  of  the  "Caroline"  justifiable  as  an 
act  of  self-defence,  the  undersigned,  earnestly  renewing  the  remon- 
strance of  this  Government  against  the  transaction,  abstains  for  the 
present  from  any  extended  discussion  of  the  question.  But  it  is 
deemed  proper,  nevertheless,  not  to  omit  to  take  some  notice  of  the 
general  grounds  of  justification  stated  by  her  Majesty's  Government 
in  their  instructions  to  Mr.  Fox. 

Her  Majesty's  Government  have  instructed  Mr.  Fox  to  say,  that 
they  are  of  opinion  that  the  transaction  which  terminated  in  the  de- 
struction of  the  "  Caroline,"  was  a  justifiable  employment  of  force, 
for  the  purpose  of  defending  the  British  territory  from  the  unprovok- 
ed attack  of  a  band  of  British  rebels  and  Ai.urican  pirates,  who,  hav- 
ing been  "permitted"  to  arm  and  organize  themselves  within  the 
territory  of  the  United  States,  had  actually  invaded  a  portion  of  the 
territory  of  her  Majesty. 

The  President  cannot  suppose  that  her  Majesty's  Government,  by 
the  use  of  these  terms,  meant  to  be  understood  as  intimating  that 
these  acts,  violating  the  laws  of  the  United  States  and  disturbing  the 
peace  of  the  B-itish  territories,  were  done  under  any  degree  of 
countenance  from  this  Government,  or  were  regarded  by  it  with  in- 
diflerence  ;  or,  that  under  the  circumstances  of  the  case,  they  could 
have  beeii  prevented  by  the  ordinary  course  of  proceeding.  Although 
he  rt-'/rets  that,  by  using  tlio  term  "permitted,"  a  possible  inference 
of  that  kind  might  be  raised,  yet  such  an  inference  the  President  is 
willing  to  believe  would  be  quite  unjust  to  the  intentions  of  the  Bri- 
tish Government. 

That,  on  a  line  of  frontier,  such  as  separates  the  United  States  from 
her  Kfitanuic  Majesty's  North  American  Provinces,  a  line  long 
tiiough  to  divide  the  whole  of  Europe  into  halves,  irregularities,  vio- 
letiaen,  wn4  eonflicts  should  sometimes  occur,  equally  against  the 
will  oi  both  Governments,  is  certainly  easily  to  be  supposed.  This 
may  be  more  possible,  perhaps,  in  regard  to  the  United  States,  with- 


|.. 


!r     . 


r  r 


1 


m 


it; 


^i. 


^-6 


GOULD  S    REPORTER. 


o\it  any  reproach  to  their  Government,  since  their  institutions  en- 
tirely discourajre  the  keeping  up  of  large  standing  armies  in  time  of 
peace,  and  their  situation  happily  exempts  them  from  the  necessity 
«'f  maiiitiiinirig  such  expensive  and  dangerous  establishments.  Ail 
that  can  be  expected  from  either  Government,  in  these  cases,  is  good 
raith,  a  sincere  desire  to  preserve  peace  and  do  justic",  the  use  of 
nil  proper  means  of  prevention,  and  that  if  oflences  cannot,  never- 
)l)cless,  be  always  prevented,  the  offenders  shall  still  be  justly  pun- 
ished. In  all  these  respects,  this  Government  acknowledges  no  de- 
linquency in  the  performance  of  its  duties. 

Her  Majesty's  Government  are  pleased,  also,  to  speak  of  those 
American  citizens,  who  took  part  with  persons  in  Canada,  engaged 
in  an  insurrection  against  the  British  Government,  as  "American 
pirates."  The  undersigned  does  not  admit  the  propriety  or  justice 
of  this  designation.  If  citizens  of  the  United  States  fitted  out,  or 
were  engaged  in  fitting  out,  a  military  expedition  from  the  United 
States,  intended  to  act  against  the  British  Government  in  Canada, 
they  were  clearly  violating  the  laws  of  their  own  country  and  expos- 
ing themselves  to  the  just  consequences,  which  might  be  inflicted  on 
them,  if  taken  within  the  British  dominions.  But  notwithstanding 
this,  they  were  certainly  not  pirates,  nor  does  the  undersigned  think 
that  it  can  advance  the  purpose  of  fair  and  friendly  discussion,  or 
hasten  the  accommodation  of  national  difficulties,  so  to  denominate 
ihcm.  Their  offence,  whatever  it  was,  had  no  analogy  to  cases  of 
piracy.  Supposing  all  that  is  alleged  against  them  to  be  true,  they 
were  taking  a  part  in  what  they  regarded  as  a  civil  war,  and  they  were 
taking  part  on  the  side  of  the  rebels.  Surely  England  herself  has  not 
regarded  persons  thus  engaged  as  deserving  the  appellation  which  her 
Majesty's  Government  bestows  on  these  citizens  of  the  United  States. 

It  is  quite  notorious  that,  for  the  greater  part  of  the  last  two 
centuries,  subjects  of  the  British  Crown  have  been  permitted  to  en- 
gage in  foreign  wars,  both  national  and  civil,  and  in  the  latter  in  every 
stage  of  (heir  progress  ;  and  yet  it  has  not  been  imagined  that  Eng- 
land has  at  any  time  allowed  her  subjects  to  turn  pirates.  Indeed  in 
our  own  times,  not  only  have  individual  subjects  of  that  Crown  gone 
abroad  to  engage  u  civil  wars,  but  we  have  seen  whole  regiments 
openly  recruited,  embodied,  armed,  and  disciplined  in  England,  with 
the  avowed  purpose  of  aiding  a  rebellion  against  a  nation  with  which 
England  was  at  peace ;  although  it  is  true  that,  subsequently,  an  act 
of  Parliament  was  passed  to  prevent  transactions  so  nearly  approach- 
ing to  public  war,  without  license  from  the  Crown. 

It  may  be  said  that  there  is  a  difference  between  the  case  of  a  civil 
war  arising  from  a  disputed  succession,  or  a  protracted  revolt  of  a 
colony  against  the  mother  country,  and  the  case  of  the  fresh  out- 
break, or  commencement  of  a  rebellion.  The  undersigned  does  not 
deny  that  such  distinction  may,  for  certain  purposes,  be  deemed  well 
founded.  He  admits  that  a  Government  called  upon  to  consider  its 
own  rights,  interests,  and  duties,  when  civil  wars  break  out  in  other 
countries,  may  decide  on  all  the  circumstances  of  the  particular  case 
upon  its  own  existing  stipulations,  on  probable  results,  on  what  its 
«>wn  security  requires,  and  on  many  other  considerations.     It  may 


MCLEOD  S    TRIAL. 


•.m 


he  alrea'ly  bound  to  assist  one  party,  or  it  may  become  botind,  if  it 
so  chooses,  to  assist  the  other,  and  to  meet  the  consequences  of  such 
assistance. 

But  whether  the  revolt  be  recent  or  lonjr  continued,  they  who  join 
those  concerned  in  it,  whatever  may  bo  their  oHenco  airainst  their 
own  country,  or  however  they  may  be  treated,  if  taken  with  arms  in 
their  hands  in  thi3  territory  of  the  Government,  against  which  the 
standard  of  revolt  is  raised,  cannot  be  denoininated  pirates,  without 
tlepa'-'.ing  from  all  ordinary  use  of  laniruage  in  the  definition  of 
ofib'ices.  A  cause  which  has  so  foul  an  origin  as  piracy  cannot,  in  its 
])rogress,  or  by  its  success,  obtain  a  claim  to  any  degree  of  respect- 
ability or  tolerance  among  nations  ;  and  civil  wars,  therefore,  are 
not  understood  to  have  such  a  commencement. 

It  is  well  known  to  Mr.  Fox  that  authorities  of  the  hifrhest  emi- 
uence  in  England,  living  and  dead,  have  maintained* that  the  general 
law  of  nations  does  not  forbid  the  citizens  or  subjects  of  one  Gov- 
ornme...  from  taking  part  in  the  civil  comtnotions  of  another. 
There  is  some  reason,  indeed,  to  think  that  such  may  be  the  opinion 
of  her  Majesty's  Government  at  the  present  moment. 

The  undersigned  has  made  these  remarks  from  the  conviction  that 
it  is  important  to  regard  established  distinctions,  and  to  view  the  acts 
and  offences  of  individuals  in  the  exactly  proper  light.  But  it  is  not 
t;»  be  inferred  that  there  is,  on  the  part  of  this  Government,  any  pur- 
pose of  extenuating,  in  the  slightest  degree,  the  crimes  of  thosr  per- 
sons, citizens  of  the  United  States,  who  have  joined  in  military  ex- 
peditions against  the  British  Govermnent  in  Canada.  On  the  con- 
trary, the  President  directs  the  undersigned  to  say  that  it  is  his 
fixed  resolution  that  all  such  disturbers  of  the  national  peace  and 
violators  of  the  laws  of  their  country,  shall  be  brought  to  exemplary 
punishment.  Nor  will  the  fact  that  they  are  instigated  and  led  on  to 
these  excesses  by  British  subjects,  refugees  from  the  provinces,  be 
deemed  any  excusp  or  palliation  ;  although  it  is  well  worthy  of  being 
remembered  that  the  prime  movers  of  these  disturbances  on  the  bor- 
ders are  subjects  of  the  Queen,  who  come  within  the  territories  of 
the  United  States,  seeking  to  enlist  the  sympathies  of  their  citizens, 
by  all  the  motives  which  they  are  able  to  address  to  them  on  account 
of  grievances,  real  or  imaginary.  There  is  no  reason  to  believe  that 
the  design  of  any  hostile  movement  from  the  United  States  against 
Canada  has  commenced  with  citizens  of  the  United  States.  The 
true  origin  of  such  purposes  and  such  enterprises  is  on  the  other 
side  of  the  line.  But  the  President's  resolution  to  prevent  these 
transgressions  of  the  laws  is  not,  on  that  account,  the  less  strong. 
It  is  taken,  not  only  in  conformity  to  his  duty  under  the  provisions 
of  existing  laws,  but  in  fidl  consonance  wiii^  the  established  princi- 
ples and  practice  of  this  Government. 

The  Government  of  the  United  States  has  not,  from  the  first, 
fallen  into  the  doubts,  elsewhere  entertained,  of  the  true  extent 
of  the  duties  of  neutrality.  It  has  held  that,  however  it  may 
have  been  in  less  enlightened  ages,  the  just  interpretation  of  the 
modern  law  of  nations  is,  that  neutral  States  are  bound  to  be  strictly 
neutral ;  and  that  it  is  a  manifest  and  gross  impropriety  for  individ- 


V  f , 


ilk 

M 


368 


GOULD  S   REPORTER. 


uals  to  engage  in  the  civil  conflicts  of  other  States,  and  thus  to  be  at 
war  while  their  Government  is  at  peace.  War  and  peace  are  high 
nationiil  relations,  which  can  properly  be  established  or  changed  only 
by  nations  themselves. 

The  United  States  have  thought,  also,  that  the  salutary  doctrine  of 
non-intervention  by  one  nation  with  the  aflfairs  of  others  is  liable  to 
be  essentially  impaired  if,  while  Government  refrains  from  interfer- 
ence, interference  is  still  allowed  to  its  subjects,  individually  or  iu 
masses.  It  may  happen,  indeed,  that  persons  choose  to  leave  their 
country,  emigrate  to  other  regions,  and  settle  themselves  on  unculti- 
vated lands,  in  territories  belonging  to  other  States.  This  cannot  be 
prevented  by  Governments,  which  allow  the  emigration  of  their 
subjects  and  citizens  ;  and  such  persons,  having  voluntarily  abandon- 
ed their  own  country,  have  no  longer  claim  to  its  protection,  nor  is 
it  longer  responsible  for  their  acts.  Such  cases,  therefore,  if  they 
occur,  show  no  abandonment  of  the  duty  of  neutrality. 

The  Government  of  the  United  States  has  not  considered  it  as 
r.ufficient  to  confine  the  duties  of  neutrality  and  non-interference  to 
ihe  cf.se  of  Governments  whose  territories  lie  adjacent  to  each  other. 
The  application  of  the  principle  may  be  more  necessary  in  such 
cases,  but  the  principle  itself  they  regard  as  being  the  same,  if  those 
lerriiories  be  divided  by  half  the  globe.  The  rule  is  founded  in  the 
impropriety  and  danger  of  allowing  individuals  to  make  war  on  their 
own  authority,  or,  by  mingling  themselves  in  the  belligerent  opera- 
tions of  other  nations,  to  run  the  hazard  of  counteracting  the  policy, 
or  embroiling  the  relations  of  their  own  Government.  And  the 
United  States  have  been  the  first  among  civilized  nations  to  enforce 
the  observance  of  this  just  rule  of  neutrality  and  peace,  by  special 
and  adequate  legal  enactments.  In  the  infancy  of  this  Government, 
on  the  breaking  out  of  the  European  wars,  which  had  their  origin  in 
the  French  Revolution,  Congress  passed  laws  with  severe  penalties 
for  preventing  the  citizens  of  the  United  States  from  taking  part  in 
those  hostilities. 

By  these  laws,  it  p-^o^ribed  to  the  citizens  of  the  United  States 
what  it  understood  to  be  their  duty,  as  neutrals,  by  the  law  of  na- 
tions, and  the  duty,  also,  which  they  owed  to  the  interest  and  honor 
of  their  own  country. 

At  a  subsequent  period,  when  the  American  colonies  of  an  Euro- 
pean Power  took  up  arms  against  their  sovereign,  Congress,  not  di- 
verted from  the  established  system  of  the  Government,  by  any  tem- 
porary considerations,  not  swerved  from  its  sense  of  justice,  and  of 
duty,  by  any  sympathies  which  it  might  naturally  f^el  for  one  of  the 
parties,  did  not  hesitate,  also,  to  pass  acts  applicab  o  to  the  case  of 
colonial  insurrection  and  civil  war.  And  these  provisions  of  law 
iiave  been  continued,  revised,  amended,  and  are  in  full  force  at  thc 
present  moment.  Nor  have  they  been  a  dead  letter,  as  it  is  well 
known  that  exemplary  punishments  have  been  inflicted  on  those 
who  have  transgressed  them.  It  is  known,  indeed,  that  heavy  pen- 
alties have  fallen  on  individuals,  citizens  of  the  United  States,  en- 
gaged in  this  very  disturbance  in  Canada,  with  which  the  destruction 
of  the  Caroline  was  connected.     And  it  is  in  Mr.  Fox's  knowledge, 


MCLEOD  S    TRIAL. 


3oD 


igin  in 
lalties 
jart  in 

States 
of  na- 
honor 

Euro- 

not  di- 
ny  tem- 

and  of 

of  the 
case  of 

of  law 
at  the 

is  well 
»n  those 
ivy  pen- 
ates,  en- 
itructi«^-u 

wledge, 


also,  that  the  act  of  Congress  of  10th  Murcfi,  1S38,  was  passed  for 
llic  precise  purpose  of  more  effectually  restraining  military  enter- 
prises, from  the  United  States  into  the  British  provinces,  by  author- 
izing the  use  of  the  most  sure  and  decisive  preventive  nicans.  The 
undersigned  may  add,  that  it  stands  on  the  admission  of  very  high 
British  aulh(trity,  that  during  the  recent  Canadian  troubles,  although 
bodies  of  adventurers  appeared  on  tiie  border,  making  it  necessary 
for  the  people  of  Canada  to  keep  themselves  in  a  state  prepared  for 
self-defence,  yet  that  these  adventurers  were  actinia  by  no  means  in 
accordance  with  the  feeling  of  the  great  mass  of  the  American  peo- 
ple, or  of  the  Government  of  the  United  States. 

This  Government,  therefore,  not  only  ludds  itself  above  reproach 
in  every  thing  respecting  the  preservation  of  neutrality,  the  observ- 
ance of  the  principle  of  non-intervention,  and  the  strictest  conformi- 
ty, in  these  respects,  to  the  rules  of  international  law,  but  it  doubts 
not  that  the  worU!  will  do  it  the  justice  to  acknowledge,  that  it  has 
set  an  example,  not  unfit  to  be  followed  by  others,  and  that  by  its 
steady  legislation,  on  this  most  important  subject,  it  has  done  some- 
thing to  promote  peace  and  good  neighborhood  among  nations,  and 
to  advance  the  civilization  of  mankind. 

The  undersigned  trusts,  that  when  her  Britannic  Majesty's  Govern- 
ment shall  present  the  grounds,  at  length,  on  which  they  justify  the 
local  authorities  of  Canada,  in  attacking  and  destroying  the  "  Caro- 
line," they  will  consider  that  the  laws  of  the  United  States  are  sucji 
as  the  undersigned  has  now  represented  them,  and  that  the  Govern- 
ment of  the  United  States  has  always  manifested  a  sincere  disposi- 
tion to  see  those  laws  eflectually  and  impartially  administered.  If 
there  have  been  cases  in  which  individuals,  justly  obnoxious  to  pun- 
ishment, have  escaped,  this  is  no  more  than  happens  in  regard  to 
other  laws. 

Under  these  circumstances,  and  under  those  immediately  connect- 
ed with  the  transaction  itself,  it  will  be  for  her  Majesty's  Government 
to  show  upon  what  state  of  facts,  and  what  rules  of  national  law,  the 
destruction  of  the  "  Caroline"  is  to  be  defended.  It  will  be  for  that 
Government  to  show  a  necessity  of  self-defence,  instant,  overwhelm- 
ing, leaving  no  choice  of  means,  and  no  momer.t  for  deliberation. 
It  will  be  for  it  to  show,  also,  that  the  local  authorities  of  Canada, 
even  supposing  the  necessity  of  the  moment  authorized  them  to  en- 
ter the  territories  of  the  Uniied  States  at  all,  did  nothing  unreasona- 
ble or  excessive  ;  since  the  act,  justified  by  the  necessity  of  self- 
defence,  must  be  limited  by  that  necessity,  and  kept  clearly  within 
it.  It  must  be  shown  that  admonition  or  remonstrance  to  the  persons 
on  board  the  "Caroline,"  was  impracticable,  or'would  have  been  un- 
availing ;  it  must  be  shown  that  day-light  could  not  be  waited  for  ; 
that  there  could  be  no  attempt  at  discrimination  between  the  inno- 
cent and  the  guilty ;  that  it  would  not  have  been  enough  to  seize 
and  detain  the  vessel ;  but  that  there  was  a  necessity,  present  and 
inevitabk..  for  attacking  her  in  the  darkness  of  the  night,  while 
moored  to  the  shore,  and  while  unarmed  men  were  asleep  on  board, 
killing  some  and  wounding  others,  and  then  drawing  her  into  the 
current,  above  the  cataract,  setting  her  on  fire,  and,  careless  to  know 


r., 


iif; 


m 


'..  'i 


\t 


J70 


GOULD  S  REPORTEH. 


whether  there  might  not  be  in  her  the  innocent  with  the  piiilty,  or 
the  living  with  the  dead,  committing  her  to  a  fate  which  (ills  the 
iinugiiiatiou  with  horror.  A  necessity  for  nil  this,  the  Crovcrnnient  of 
the  United  States  cannot  believe 'to  have  existed. 

All  will  see  that  if  such  things  be  allowed  to  occur,  they  mnst  lead 


bloody  and 


>rated 


And  wlu 


idividual 


jonies into 
the  United  States  from  Canada,  and  to  the  very  place  on  which  tliis 
drama  was  performed,  and  there  chooses  to  make  public  and  vain- 
glorious boast  of  the  part  he  acted  in  it,  it  is  hardly  wonderful  that 
jrreat  excitement  should  be  created,  and  some  decree  of  commotion 
arise. 

This  republic  does  notAvish  to  disturb  the  tranqnillity  of  the  world. 
Its  object  is  peace,  its  policy  peace.  It  §ecks  no  aggrandizement 
by  foreign  conquest,  because  it  knows  that  no  foreign  acquisitions 
could  augment  its  power  and  importance  so  rapidly  as  they  are  al- 
ready advancing  by  its  own  natural  growth,  under  the  propitious 
circumstances  of  its  situation.  But  it  cannot  admit  that  its  govern- 
ment has  not  both  the  will  and  the  power  to  preserve  its  own  neutrality, 
and  to  enforce  the  observance  of  its  own  laws  upon  its  own  citizens. 
It  is  jealous  of  its  rights,  and  among  others,  and  most  especially,  of 
the  right  of  the  absolute  inununity  of  its  territory  against  aggression 
from  abroad  ;  and  these  rights  it  is  the  duty  and  determination  of  this 
governmenl  fully,  and  at  all  times,  to  maintain,  while  it  will  at  the 
same  time  as  scrupulously  refrain  from  infringing  on  the  rights  of 
others. 

.  The  President  instructs  the  undersigned  to  say,  in  conclusion,  that 
lie  confidently  trusts  that  this,  and  all  other  questions  of  difference 
between  the  two  governments,  will  be  treated  by  both  in  the  full 
exercise  of  such  a  spirit  of  candor,  justice,  and  mutual  respect,  as 
shall  give  assurance  of  the  long  continuance  of  peace  between  the 
two  countries. 

The  undersigned  avails  himself  of  this  opportunity  to  assure  Mr. 
Fox  of  his  high  consideration. 

DANL.  WEBSTER. 

Henry  S.  Fox,  Esq., 

Envoy  Extraordinary  and  Minister  Plenipotentiary. 


SUPREME  COURT  OF  THE  STATE  OF  NEW  YORK. 

Wo.  3. 

ARGUMENT    OF   MR.    BRADLEY. 

Mr.  Bradley  addressed  the  Court  as  follows : 

The  interest  created  everywhere  by  this  controversy  is  no  greater 
than  justly  belongs  to  it.  This  prosecution  is  the  first  attempt  ever 
made  to  hold  a  man  responsible  to  the  municipal  tribunals  of  another 
country  for  the  obedience  which  he  has  rendered  to  the  authorities 
of  his  own.     And  all  can  see  that  if  it  be  adopted  here,  and  infused 


a  fruit 

love  of 

ing  dr 

polled 

could 

sage  tt 

Just 

of  the 

employ 

ous  con 

ed  by  t 

I  ween  t 

tlie  bou 

island 

nation  \ 


MCLEOD  S    TRIAL. 


a7i 


liltv,  or 
ills  thr 
uent  of 

ust  lead 
nic«  into 
lich  \.h\-^ 
nil  vaiu- 
.rfiil  thai 
iniiiotion 

lie  worUl. 
idi/oiiicnt 
rjuisitions 
cy  are  al- 
propitious 
ts  govern- 
neutrality, 
n  citizens. 

ecially,  of 
ao-gression 

tion  of  this 
vill  at  the 
;  rights  of 

lusion,  that 

difference 

in  the  full 

respect,  as 

etween  the 


assure 


Mr. 


LBSTER. 


Iyokk. 


K 


|s  no  greater 

ittempt  ever 

Is  of  another 

authorities 

and  infused 


into  the  code  of  nations,  no  sngacity  can  predict  the  extent  of  the 
revolution  which  must  follow.  A  hrief  review  of  the  evidence  intro- 
duced for  the  defendant  yesterday,  and  the  prosecution  to-day,  while 
it  unfolds  the  true  origin  of  this  question,  will  show  its  fearful  im- 
portance. 

Canada  is  a  far  distant  extremity  of  a  transatlantic  monarchy,  but 
lia\  iug  a  local  government  with  powers  adetiiiate  to  every  exifrency 
of  her  institution.  Though  lately  the  scene  of  a  transient  rebellion, 
she  was  now  (|iiiet  and  her  peoph;  apparently  contented.  Alonj  her 
.southern  honler  lay  a  country  of  dillcrent  institutions,  in  spirit  as  in 
name,  republican.  Here  public  meetings  were  held — arms  collected 
— military  stores  provided — volunteers  enlisted  to  aid  a  projected 
invasion  of  the  Upper  Province.  On  this  same  soil,  the  I'nitcd 
States  and  Great  liritain  being  at  peace,  these  forces  were  publicly 
organized,  and  an  American  citizen  placed  at  the  head  as  Commanci- 
er-in-Chief.  Navy  Island  was  their  first  object,  and  this  they  seized. 
The  motives  of  this  invasion — what  were  they  ?  To  produce  war — 
a  civil  war,  and  this  too  in  winter,  and  to  arouse  a  population  of  less 
than  half  a  million  to  rebellion  against  a  nation  whose  fortresses  belt 
the  globe.  Behind  them  lay  the  United  States,  and  Sclilossor  was 
made  their  poim.  of  communication.  In  that  direction,  they  looked 
for  recruits,  for  supplies,  for  encouragement  and  succor  of  every 
kind.  Thither  too,  in  case  of  disaster,  they  could  retreat,  and 
arm  for  fresh  aggression.  All  this,  and  more,  they  had  a  right 
to  expect ;  because  for  their  support,  the  shcritrof  Erie  had  been 
robbed  of  two  hundred  stand  of  arms — twelve  pieces  of  ordnance 
stolen,  and  the  Batavia  arsenal  plundered  of  its  contents.  And  the 
same  lawless  spirit  was  raging  along  the  whole  frontier,  from  Buffalo 
to  Vermont. 

How  was  it  in  Canada  the  while  \  After  the  event  it  is  easy  to  he 
wise, — not  so  before.  She  was'  invaded  by  a  force,  then  said,  and 
here  proved  to  have  been,  a  thousand  strong — and  with  what  motives 
we  know.  One  rebellion  had  just  bv-en,  and  another  might  come.  If 
it  did,  all  Canadians  saw  that  the  journey  before  them  lay  through 
ruined  business,  desolated  homes,  and  a  bleeding  land,  to  a  new  con- 
dition worse  than  the  old  ;  for  what  chains  were  ever  made  lighter  by 
a  fruitless  efTort  to  cast  them  ofT?  Motives  enough  there  were, — if 
love  of  country,  then  that, — if  fear,  that, — if  pride,  which  scorned  be- 
ing driven,  even  to  freedom,  by  a  ruffian  band  of  invaders,  that  im- 
pelled them — to  what  \  Self-dei«!nce.  For  aught  they  knew  or 
could  then  know,  their  entire  safety  depended  upon  closing  that  pas- 
sage to  Schlosser. 

Just  at  this  moment,  the  Caroline  appears,  moving  on  the  waters 
of  the  Niagara ;  and  no  matter  by  whom  owned  or  with  what  motives 
employed,  the  effect  of  her  presence  was  toMnake  closer  that  danger- 
ous connection  and  more  difficult  to  sever, — a  result  most  to  be  dread- 
ed by  the  Provincials,  and  most  to  be  hoped  by  their  invaders.  Be- 
tween the  isle  and  the  American  mainland,  runs  an  imaginary  line — 
the  boundary  of  the  two  nations.  To  this  line,  the  cannon  of  the 
island  would  protect  her,  and  beyond  it  she  was  in  the  waters  of  a 
nation  with  whom  Great  Britain  was  at  peace.     Thus  our  very  neu- 


;i 


t' '. 


y7'2 


GOULD  S    REPORTER. 


trality  wns  mnde  im  instilment  of  wnr,  and  the  moans  of  a  then  in- 
ciilciilnblc  dniiper  to  the  Provitice.  'v 

The  steamer,  ImvidjT  deposited  on  the  island  her  weij^ht  from  above, 
and  transported  thither  n  field-piece  and  othci  warlike  instruments 
from  .Sclilosser,  wns  fastened  at  the  latter  place,  which,  for  whatever 
purposes  of  the  war  it  had  hoon  used,  was  deemed  neutral  enough  for 
protection.  But  she  had  been  watched,  and  was  already  doomed. 
An  armed  force,  (whether  of  regulars  or  volunteers,  is  no  matter,  for 
in  war  all  citizens  are  soldiers,  and  should  be  prompt  at  the  earliest 
call,)  organized  and  dispatched  by  c(»tnmand  of  the  Provincial  Au- 
thorities, appeari'd  at  midnight  by  her  side,  and  at  once  discharging 
their  Jire-arms,  and  shouting  to  their  utmost  voice,  leaped  on  board. 
Her  inmates  unarmed  and  unresisting — some  fell, — some  fled.  On 
the  dock,  and  dead,  Durfce  was  found.  The  assailants  having  fired 
her,  and  cast  off  the  fastening  chains,  towed  her  into  the  current  ; 
she  drifted  slowly  down  a  space,  lodged  an  instant, — was  again 
put  afloat.  And  as  the  flames,  now  racing  over  her  burning  decks, 
announced  in  Chippewa,  the  success  of  the  expedition,  beacon  lights 
there  shot  up  to  guide  the  adventurers  back,  while  the  Caroline  was 
left  to  taJic  her  own  blazing  way  down  the  rapids  and  over  the  cata- 
ract, to  be  extinguished  in  the  abyss  below. 

Hciu  allow  me  to  pause  a  moment  to  tell  the  counsel  for  the  pro- 
secution, that  any  eloquence  they  may  have  to  spare  on  this  transac- 
tion as  an  unauthorized  invasion  of  our  soil  by  a  friendly  Power, — an 
nnjustifiable  violation  of  neutral  rights,  and  demanding  immediate 
and  exemplary  redress, — will  be  bestowed  in  exceeding  good  place. 
Such  was  the  view  taken  by  the  Federal  Government — such,  by  Gov. 
Marcy — such,  by  the  American  Minister  at  St.  James,  whose  spirited 
remonstrance  would  furnish  them  an  excellent  brief.  And  \Vhen  in 
their  reply  to  my  poor  remarks,  they  give  vent  to  the  orator's  noble 
fervor  of  an  hour,  let  them  be  animated  by  the  consciousness  that 
from  within  a  marine  league  of  the  coast,  to  where  the  farthest  axe 
has  new-hacked  the  wilderness,  few  American  tracts  will  be  found  to 
say  to  them.  Nay.  And  I  pray  that  for  the  occasion,  they  may  be 
inspired  with  the  power  of  "  those  ancients,  who  shook  the  Arsenal 
and  fulmined  over  Greece,"  to  do  justice  to  the  theme.  And  why  \ 
Because  in  making  good  that  position,  they  establish  ours.  For, 
neutrality  is  a  relation  between  nations  onlj*.  'I'hey  alone  .  can 
keep, — they  alone  violate.  Individuals,  as  such,  can  do  neither ; 
although,  acting  for  their  government  and  by  its  commands,  they 
may  do  both.  But  then  their  country  is  responsible.  And  when 
the  prosecutors  shall  have  driven  home  this  charge  npon  Great 
Britain,  they  will  have  brought  the  destroyers  of  the  Caroline  and  of 
Durfee  within  the  operation  of  a  principle  which  can  be  no  more 
rightfully  denied,  than  can  be  the  mysterious  influence  which  binds 
the  earth  in  its  orbit, — the  same  principle  by  which  this  Court  ad- 
ministers justice,  and  all  are  bound  to  reverence  its  decrees  and 
obey.  For  allegiance  to  their  own  government  and  to  that  alone,  is 
a  duty  which  all  men  owe  and  all  civilized  nations  recognize.  When 
under  duress  of  that  allegiance,  a  person  violates  the  rights  of  another 
nation,   the  crime  attaches  not  to  the  individual,  but  to  the  state 


« 


stl 


MCLEOD  S   THIAL. 


a:;} 


.,1 


then  in- 
ill  above, 
triunents 
whatever 
iiough  for 

(loomed, 
mtter,  for 
le  earliest 
ncinl  Au- 
jichnrginff 
on  bonrJ. 
fled.  On 
iving  fired 

current ; 
^as  again 
ing  decks, 
icon  lights 
roline  was 
r  the  cata- 

ir  the  pro- 
lis  transac- 
'ower, — an 
immediate 
cod  place. 
;h,byGov. 
)se  spirited 
nd  \Vhen  in 
iter's  noble 
isness  that 
arthest  axe 
be  found  to 
ley  may  be 
the  Arsenal 

And  why  \ 
lours.     For, 

alone  can 
do  neither ; 
nands,  they 

And  when 
upon  Great 
)line  and  of 
le  no  more 
vhich  binds 
IS  Court  ad- 
decrees  and 
lat  alone,  is 
nize.   When 
ts  of  another 
to  the  state 


whose  helpless  and  involuntary  instrnnient  he  is,     ronsequenlly,  he 


w 


illy 


or 


o  obeys  Iiih  o\.'n  governuicnt,  can  never  rtc  ni;i(le  persona 
'•riminally  responsible  for  that  act  by  the  municipal  tribunals  of  any 
other. 

The  prisoner  is  indicted  for  murder  as  a  priiicipnl  in  the  first  and 
second  degrees,  and  as  an  accessary  before  the  fact.  IJut  to  them 
all,  this  remark  is  applicable.  The  conduct  co'uplained  of,  must 
liave  been  voluntary.  It  is  not  enough  that  the  will  assented  before 
and  at  the  time  ^  that  assent  must  have  beoif  uncaused  by  any  of 
those  constraints,  either  physical,  which  allow  the  accused  no  power, 
or  political,  which  allow  him  no  right  to  resist.  And  bound  by  this 
last,  is  every  man  under  orders  from  his  superior,  having,  us  between 
the  citizen  and  sovereign,  jurisdiction  to  give  them. 

This  brings  me  to  the  (|U('<ti»)n  how  far  nations  recognize,  in  the 
subjects  of  each  other,  the  Dbligations  of  allegiance! — Hut  before 
entering  upon  that,  a  moment  spent  upon  a  preliminary  consideration 
or  two,  obvious  enough  indeed,  but  important  to  be  glanced  at,  will, 
ill  the  seipiel,  be  found,  I  trust,  not  to  have  been  tiirown  away. 

Publicists  all  refer  for  the  model  of  the  rights,  duties  and  oblijra- 
lions  of  nations,  to  a  state  <>(  nature.  In  that  state,  all  were  (^qual, — 
all  independent.  J'^ach  ha\  lug  no  inferior,  gave  no  law,  and  having 
no  supt  rior,  took  none.  In  matters  of  right,  he  consulted  his  own 
conscience  alone,  of  wisdom.  Iiis  own  understanding,  of  force,  his 
own  good  right  arm.  His  mijid,  his  powers,  his  members  were  all 
his  own  ;  and  as  /le  commanded  l/iey  obeyed.  By  one  set  of  faculties, 
he  could  preserve  peace  within  ;  and  by  another  set,  and  totally  dif- 
ferent, he  could  secure  it  from  without.  Thus  each  man  was  a  min- 
iature nation. 

But  framed  as  human  nature  was,  some  men  weak,  some  rapacious, 
unions  became  necessary,  and  they  betook  themselves  to  distinct 
clusters.  And  the  several  clusters  stood  apart  from  each  other,  as 
equal  in  rights,  and  independent  in  power,  as  the  individuals  of  whom 
they  were  composed  had  been  before.  A  method  was  devised  to 
determine  what  was  right,  what  expedient,  and  the  means  provided 
to  effect  both.  Thus  each  nation  came  to  have  a  conscience,  an  un- 
derstanding, and  a  right  arm.  This  is  a  sovereignty.  Each  indi- 
vidual agreed  with  all,  that  he  would  obey;  and  all  agreed  with 
each,  that  obeying,  ho  should  be  protected.  This  duty  of  submis- 
sion is  allegiance.  This  protection  the  price  paid  for  it.  To  ensure 
domestic  justice  and  repose,  municipal  laws,  and  muTiicipal  courts, 
and  ministerial  oflicers  and  process  were  devised.  The  care  of  ex- 
ternal justice  and  tranquillity  was  entrusted  to  armies  and  navies  and 
foreign  ministers.  And  both  the  departments  met  in  the  supreme 
E-vecutive  Head,  which  gave  a  unity  and  identity  to  the  whole. 
Thus,  in  all  important  analogies,  each  nation  is  a  moral  person,  and 
the  several  nations  several  persons.  The  stute  framed  a  code  among 
themselves,  by  which,  and  by  which  .ilL»iie,  their  rights  were  to  be 
enforced — by  which,  and  by  which  alone,  their  wrongs  redressed — 
the  great  Public  Code  of  the  World. 

But  to  return  to  the  internal  rights  and  obligations  of  the  several 
states : — sovereiglity,  embracing  the  right  to  judge  conclusively  for 


1$ 


n 

ti 

I: 


I 


m 
4 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


M    125 


■10 


K 


£»■ 


I.I 


■  40 


IL25  liu 


1 2.2 

20 
1.6 


Photographic 

Sciences 

Corporation 


# 


v 


:\ 


\ 


^<b 


V 


6^ 


23  WEST  MAIN  STREET 

WEBSTER,  N.Y.  14580 

(716)  872-4503 


> 


^  yj^i 


U.. 


% 


I 


^ 


374 


GOULD  s    REPORTEH. 


itself,  what  is  to  be  done,  and  the  power  to  use  every  necessary 
means  to  do  it,  every  state  has  and  must  have.  In  what. part  of  the 
body  politic  it  may  be  placed,  and  throusrh  what  forms  to  be  exer- 
cised, are  alike  immaterial.  From  the  People  it  originally  came,  and 
was  by  them  placed  either  where  they  pleased,  or  where  necessity 
compelled.  No  matter  whether  it  be  vested  in  one  despotic  will  as 
in  Russia,  or  in  a  Q,ueen,  Lords  and  Commons,  as  in  Great  Britain, 
or  in  the  singularly  combined  and  interwoven  system  enjoyed  by  us 
in  the  United  States,  there  is  yet  in  every  state,  a  Supreme  Power, 
to  which  all  other  powers  in  it  must  do  obedience.  Every  nation 
governs  conclusively  and  has  a  right  to  govern, — commands  in  the 
last  resort,  and  has  a  right  to  command,  her  own  subjects.  Indeed, 
withou^  this  power  and  right,  she  would  be  no  nation.  Take  them 
away,  and  her  people  are  at  once  landed  back  in  that  state  of  nature 
whence  they  had  emerged. 

Co-relative  to  this  right  of  sovereignty  and  co-extensive  with  it,  is 
the  duty  of  obedience.  From  its  obligation  none  are  exempt.  To 
the  government,  by  the  very  terms  of  the  social  compact,  all  have,  as 
to  public  affairs,  bowed  their  wills,  surrendered  their  power,  and 
ceded  av/ay  their  rights  and  obligations.  No  longer  can  they  do 
whatever  they  please, — no  longer  obey  whatever  may  be  the  dictates  of 
their  own  judgment.  There  is  now  a  power  above  them  whose  laws 
are  Supreme — and  these,  they  must  not,  cannot  resist.  If  they 
deem  the  mandate  unjust  and  unwise,  thej"^  iriay,  indeed,  reason  and 
expostulate,  and  procure  a  change  if  they  can ;  or,  they  may  arise, 
and  overthrow  the  decree  and  government  together ;  that  while  it 
remains  a  law,  and  they  subjects,  they  must  bide  their  time,  and  look 
for  better  auspices.  Meanwhile,  however,  they  have  nothing  to  do 
but  to  submit.  , 

So  far,  indeed,  reaches  this  principle,  and  such  is  the  gratitude  of 
men  for  the  benelits  it  has  conferred,  that  the  obligation  to  render  it, 
has  warmed  into  a  sentiment,  and  kindled  into  a  passion,  and  glows 
more  or  less  in  every — or  nearly  every  human  heart,  and  brightest 
in  the  purest.  It  waits  not  for  the  command,  but  anticipates  it,  and 
renders  that  from  love,  which  the  state  would  hardly  venture  to  ask 
under  the  compact.  In  this  form,  it  is  called  patriotism  or  love  of 
country,  and  has  given  birth  to  many  of  the  virtufis  which  most  enno- 
ble man. 

Since,  then,  this  right  to  command,  and  this  duty  to  obey,  are  of 
the  very  essence, — nay,  the  very  idea  of  government — it  follows, 
that,  whenever  one  nation  recognizes  in  another  a  national  existence, 
she  recognizes  also,  ipso  facto,  the  right  of  that  other  to  exercise  this 
sovereignty,  and  the  duty  of  the  subjects  to  yield  this  obedience. 
For,  without  them,  she  would  be  no  nation, — have  no  government, 
and  could  not,  therefore,  be  recognized.  The  existence  of  both  then, 
every  state  which  treats  her  as  an  independent  community,  is  sol- 
emnly estopped, — legally  and  politically  estopped — estopped  in  every 
form,  from  denying.  And  any  interference  with  the  subjects  as  yet 
in  peace,  of  another,  is,  per  se,  just  cause  of  immediate  war.  And 
why  1  Not  merely  on  the  ground  of  self-defence,  although  it  disturbs 
the  repose,  endangers  tie  happiness  and  perils  the  existence  of  the 


•i 


;ij(i 


MCLEOD  S   TRIAL. 


375 


I     I 


injured  state:  but,  because,  it  is  treachery,  breach  of  faith,  -denying 
in  practice  what  is  stipulated  by  treaty.  Nay,  it  is  worse,  far  worse, 
than  treachery,  because,  by  striliing  at  that  without  which  civil  organ- 
i;!ation  cannot  exist,  it  is  digging  away  the  very  foundulion-stone  of 
the  social  edifice.  And  if  she  Avill  not  desist,  her  just  doom  is  re- 
corded by  the  Publicists  when  they  say  she  may  be  utterly  extermin- 
ated. And  whyl  Because  nations,  owing  their  own  very  existence 
to  civil  submission  at  home,  must  not  either  become  themselves,  or 
employ  others,  as  the  missionaries  of  disobedience  abroad.  And  al- 
low me  to  add,  that  by  nothing  is  more  strongly  marked  the  progress 
of  correct  principles  and  >-ound  morals  among  the  nations,  than  by 
the  Total  Abstinence  on  this  subject,  now  practised  by  the  nations. 

Since,  then,  all  governments  possess  this  right  of  sovereignty, 
and  all  citizens,  while  they  remain  such,  owe  an  equally  extensive 
duty  of  obedience ;  and  since  the  obligation  of  this  duty  is  unquali- 
fiedly admitted  by  the  recognition  of  other  iiations  ;  it  inevitably  fol- 
lows, that  for  whatever  any  subject  or  citizen  may  do,  in  obedience 
to  his  sovereign,  and  within  the  range  and  under  the  duress  of  his  al- 
legiance, he  cannot  be  held  personally  or  criminally  responsible  to 
the  municipal  tribunals  of  other  nations.  For,  what  greater  outrage 
can  human  atrocity  perpetrate,  than  while  admitting  an  act  to  be 
duty,  to  punish  the  performance  of  it  as  a  crime  1  No:  to  his  own 
master  stands  or  falls  every  citizen,  and  to  his  own  master  alone. 

Be  the  act,  then,  war,  or  invasion, — general  or  local  hostility, — 
on  a  scale  broad  or  narrow — be  it  the  destruction  of  the  Combined 
Fleet  of  the  North  at  Copenhagen,  or  of  the  Caroline  at  Schlosser, 
whenever  the  command  to  do  it  is  given  by  authority  having  ju- 
risdiction, it  must  be  implicitly  obeyed.  Tlie  right  of  sovereignty 
demands  it — the  duty  of  allegiance  requires  it ;  and  the  recognition 
of  both,  by  the  injured  State,  pardons  it.  Between  submission  and 
rebellion,  there  is  no  middle  ground.  The  citizen  subject  is  helpless, 
involuntary,  and,  therefore,  unaccountable.  He  is  bound  by  ties 
which  nothing  but  Revolution  can  sever ;  and  revolution  no  other 
state,  as  such,  has  a  right  to  give  him  a  single  motive  of  hope  or  of 
fear  to  attempt.  Revolution,  he  may,  indeed,  try ;  but  he  tries  it  on 
his  own  sole  responsibility  and  at  his  own  proper  peril.  If  the  com- 
mand be  such  as  violates  the  social  compact,  it  is  his  right ;  but  like 
every  other  right  that  is  his,  he  may  forego,  waive,  abandon  it,  and 
keep  right  on  in  the  even  tenor  of  his  allegiance.  And  for  doing  so, 
no  other  state  has  a  \vord  of  blame  and  much  less  a  stripe  of  punish- 
ment to  bestow. 

If  the  act  be  injurious  to  another  state,  that  is  not  a  matter  he 
may  look  into  to  find  security  for  disobedience — to  his  government 
he  has  ceded  his  control  over  foreign  affairs — she  is  to  judge  whether 
the  act  be  right  or  wrong ;  and  as  a  justification  for  him,  that  judg- 
ment is  always  right.  Not  so,  however,  to  the  injured  state — as  to 
her  it  may  be  very  wrong.  What  be  wrong  ?  That  judgment,  and 
that  command  given  under  it.  Who  then  is  culpable  !  They  who 
formed  the  one  and  gave  the  others, — not  he,  the  instrument,  hav- 
ing no  power  to  resist,  and  stipulated  by  international  recognition  to 
have  none.     He  is  bound  by  a  political  necessity  growing  out  of  al- 


'      !. 


I   1 


I 


i' 


li;. 


:i76 


GOITLD  S    REPORTER. 


lenfianoc,  as  stern  as  matter  by  the  physical,  sprincfin^r  from  gravita- 
tion. Both,  indeed,  operate  under  the  same  Ahnighty  sanction. 
For,  He  who  has  tied  the  material  universe  togetlier  by  the  one,  has 
said  to  man  by  his  Revelation,  "Let  every  soul  be  subject  to  ihe 
higher  powers,  and  they  which  resist,  shall  receive  to  themselves 
danmation."  As  well,  then,  hold  the  tumbling  granite  responsible  for 
the  devastations  of  the  avalanche,  as  man  personally  or  criminally 
for  the  ruin  he  spreads  in  obeying  the  lawful  commands  of  his  coun- 
try. 

The  United  States,  then,  and  Great  Britain,  have  they  recognized 
in  each  other  a  national  existence  1  By  war,  by  peace,  by  the  De- 
claration of  Independence,  by  the  treaty  of  1783,  by  that  of  1815,  by 
the  interchange  of  ministers, — by  every  recognition  which  nations 
can  give  or  nations  receive,  they  are  mutually  estopped  from  deny- 
ing to  each  other  the  rights  of  sovereignty,  and  from  disputing  in 
the  citizens  of  each  other  the  duties  of  obedience.  By  these  acts, 
done  unrler  the  highest  national  solemnities,  the  United  Stateg  are 
concluded — throughout  all  their  borders — not  the  Union  alone,  but 
all  its  parts — New  York  and  its  Courts — this  Court — and  the  one 
above  it  and  all  below  it. 

I  know  the  sacred  tocsin  of  State  Rights — which,  however,  is  of 
late  losing  its  just  reverence,  by  being  rung  at  every  bonfire, — has 
been  pealed  through  the  country.  But  what  of  it '!  Were  New 
York  struck  off  from  the  Union  and  formed  into  a  separate  Empire, — 
could  she  deny  to  Great  Britaina  national  existence  (  By  her  North  - 
cm  Boundary,  by  her  name,  by  her  Constitution  which  adopts  the 
English  Common  Law, — by  that  very  Common  Law,  thus  adopted, 
on  every  bright  page  of  which  it  is  written  that  the  country  wher- 
ever it  came  has  a  Supreme  Power  which  all  the  other  powers 
must  obey, — by  these,  one  and  all,  she  would  be  held  to  take  notice 
that  Great  Britain  was,  like  herself,  an  independent  State  giving  com- 
mands and  laws,  and  exacting  obedience.  In  the  Union  then,  ox  out 
of  it,  it  is  the  same  with  New  York.  Her  people  are  concluded, 
and  all  her  servants,  from  the  lowest  to  those  who  sit  in  high  au- 
thority on  the  summit. 

What  then  is  the  easel  Is  it  denied  that  the  affair  at  Schlosser 
Avas  an  armed  invasion  of  our  soil  ? — denied  that  the  invaders  were 
a  part  of  the  Canadian  public  force  \ — denied  that  they  came  by 
command  of  the  Provincial  Authorities'? — denied  that  the  power  to 
give  this  command  had  been  previously  conferred,  and  the  exercise 
of  it  subsequently  ratified  by  Great  Britain  1  None  of  these  do,  or 
will  the  prosecutors  question.  When  the  command  came,  then, 
were  not  those  to  whom  it  was  addressed  bound  to  obey  1  Did  not 
that  command  as  between  themselves  and  their  sovereign,  put  them 
on  their  allegiance  1  Volunteers  or  no  volunteers,  undoubtedly  it 
did.  Are  they  criminal  then  1  Misapplied  as  it  may  have  been,  and 
often  will  be,  the  principle  itself  of  submission  to  constituted  au- 
thority, acting  in  self-defence,  and  repelling  lawless  invasion,  is  sa- 
cred— and  never  yet,  even  in  its  wildest  errors,  has  been  held  a  crime. 
No  !  wrong  as  may  have  been  their  fearful  errand,  the  destroyers  of 
the  Caroline  started  on  it,  that  gloomy  night,  led  by  no  motive  which 


at 


s 
.11* 


MCLEOD  S    TRIAL. 


377 


i       t 


one 


or  out 


•hlosser 
frs  were 
a  me  by 
)wer  to 
txercisc 
do,  or 

1,  then, 
iDid  not 

It  them 

tedly  it 
len,  and 
Ited  au- 
is  sa- 

.  crime. 

/^ers  of 
which 


any  municipal  court  can  hold  to  be  malice  aforethought,  or  instiga- 
tions from  the  source  of  All  Evil,  but  by  that  highest  constraint 
known  to  civilized  man — the  duress  per  patrium^ — that  coinpnlsion 
by  which  nations  stand, — to  whicli  they  owe  all  that  is  valuable  in 
public  order, — all  that  is  splendid  in  public  glory,  and  without  which 
they  would  crumble  down  and  disband,  and  mankind  be  thrown  again 
at  large,  accountable  to  no  superior  and  restrained  by  no  law. 

The  whole  transaction, — what  is  it  but  a  transgression  by  one  in- 
dependent nation  upon  another  \  By  what  code,  then,  is  it  to  be 
tried  1  By  that  and  that  alone  which  defines  the  rights,  and  pun- 
ishes the  wrongs  of  the  communities  of  the  world. 

.  But  the  sanctions  of  this  code, — are  they  administered  by  the 
municipal  courts  of  New  York  ^  No:  These  are  a  part  of  the  ma- 
chinery devised  to  ensure  domestic,  not  international  justice.  They 
are  framed  to  deal  with  citizens, — individual  offenders  who  set  up 
business  for  themselves  and  do  crimes  on  their  own  account.  Ex- 
'.unining  magistrates  commit  n6t  for  wrongs  done  by  one  independent 
community  upon  another.  The  juries  by  whom  indictments  are 
found,  are  the  Grand  Inquests,  not  of  nations,  but  of  their  own  par- 
ticular County.  No:  The  tribunals  for  the  correction  of  interna- 
tional wrongs  begin  at  a  different  place,  proceed  on  diflerent  princi- 
ples, are  guided  by  different  rules  of  practice,  and  in  whatever  else 
they  may  result  never  end  by  bringing  tiie  issue  to  trial  before  a  jury 
who  would  be  compelled  by  their  allegiance  to  take  side  with  the 
country  on  whose  injuries  they  would  be  called  to  deliberate. 

Even  then,  if  New  York  were  an  independent  nation,  over  this 
matter  her  tribunals  would  have  no  jurisdiction.  But  she  is  not.  So 
far  as  Gr  ^at  Britain  is  concerned,  she  is  but  a  fragmentary  portion 
of  a  nation.  She  has  no  external  relations,  can  make  no  treaties, 
send  or  receive  no  ambassadors ;  not  even  surrender  to  Canada  a 
poor  trembling  fugitive  from  justice  How  then  can  her  courts  take 
cognizance  of  national  wrongs  1 

But  we  are  told  an  indictment  has  been  found.  But  can  an  indict- 
ment confer  jurisdiction!  Consent  cannot, — a  plea  of  guilty  would 
not, — a  statute  of  New  York,  in  a  case  like  this,  or  of  the  United 
States,  could  not.  How  can  an  indictment  then!  What  is  an  in- 
dictment I  Simply  the  declaration  in  a  criminal  suit — and  who  ever 
heard  that  a  defendant  in  a  civil  suit,  arrested  by  process  from  a 
court  having  no  jurisdiction,  could  not  be  discharged  after  declara- 
tion filed  1  True,  the  indictment  has  been  found  by  a  grand  jury. 
But  for  whose  benefit  is  that  jury  impannelcd  1  Civil  prosecutions 
may  be  commenced  at  the  will  of  flie  plaintifl^,  but  the  criminal  are 
more  oppressive.  The  law,  in  mercy  to  the  defendant,  then,  declares 
that  no  suit  of  that  kind  shall  be  prosecuted  at  the  will  of  any  one 
man,  and  that  the  accused  shall  not  be  put  on  trial  till  the  jury  has 
looked  into  the  cause  for  it.  If  they  find  cause,  then  he  is  in  the 
same  situation  as  a  defendant  in  the  other  class  of  cases,  after  declara- 
tion on  file.  Then,  if  the  court  had  no  jurisdiction  before,  how  can 
a  grand  jury,  a  part  of  its  own  machinery,  give  one  1  It  is  the  law 
and  the  crime  wliich  confer  jurisdiction  ;  and  if  New  York  has  not 
the  supervision  of  international  transactions,  how  can  an  indictment 

48 


) 


■    .  I 


!    i 


378 


GOULDS    REPORTER. 


give  it  1  What  mighty  magic  has  this  document,  that  it  is  of  force 
to  hold  the  prisoner  in  confinement  against  law — against  the  Con- 
stitution, making  the  court  powerless  to  discharge,  though  having  no 
jurisdiction  to  try  1  • 

Another  objection  to  a  discharge  is  that  Durfee  was  not  killed  on 
the  boiit,  and  that  his  death  was  not  necessary  to  her  capture,  and 
therefore  the  killing  of  him  exceeded  their  commands.  Whether  his 
death  were  necessary  or  not,  is  unknown.  But  what  if  it  were  .' 
What  was  the  nature  of  that  invasion  1  The  message  of  Governor 
Marcy  tells — the  remonstrance  of  Mr.  Stevenson  tells— the  negotia- 
tions between  the  governments  toll — it  was  a  hostile  invasion,  an  en- 
try of  our  territory  with  an  avowed  public  force,  in  defiance  of  our 
laws  and  under  the  authority  of  a  foreign  government.  What  is 
that  but  war  1  Temporary,  indeed,  but  yet  war,  and  while  it  lasted, 
just  as  much  so  as  that  of  the  revolution  or  the  one  which  followed 
it.  If  the  force  be  public  (was  this  publicl)  and  put  in  motion  by 
national  authority — (was  this  so  moved  1)  and  exert  itself  by  armed 
aggression — (was  this  so  exerted  1)  it  is  then  war.  Will  they  con- 
tend that  it  wiis  peace  '!  Not  the  amount  or  continuance  of  force, 
but  the  authority  by  which  it  is  moved,  gives  it  character.  Our 
minister  at  St.  James's  calls  it  hostility,  open  hostility  and  undisguis- 
ed— and  when  this  is  committed  by  an  independent  nation,  who  will 
say  that  it  is  peace  1  And  if  it  be  war,  who  ever  before  heard — wh(» 
will  ever  again  hear  that  excess  of  violence  gives  the  municipal  tri- 
bunals of  the  invaded  nation,  jurisdiction  of  the  offence  1 

Invaders  owe  the  municipal  laws  of  the  State  they  enter,  no  obe- 
dience, because  they  owe  the  State  none — the  flag  they  march  under 
shows  the  country  they  serve.  The  law  under  which  they  come  is 
found  in  that  chapter  of  international  law  devoted  to  war  ;  and  under 
that  or  some  other  of  the  same  code,  must  crimes  be  punished.  Ex- 
cessive violence  1  The  very  nature  of  war  is  outrage.  Every  evil 
passion  common  to  man  and  the  tiger  is  put  forth.  What,  then,  if 
Durfee  were  needlessly  slain  1  The  transaction  still  is  national :  and 
Great  Britain  must  answer  the  consequences.  Whether  he  fell  a 
mile  or  a  yard  from  the  boat,  or  on  it,  is,  then,  quite  immaterial. 

The  whole  prosecution  is  founded  on  one  fundamental  error,  that 
the  subjects  of  one  State  acting  within  the  territory  of  another,  in 
obedience  to  their  sovereign,  and  as  part  of  his  public  force,  are  re- 
sponsible to  the  municipal  laws  prevailing  where  the  act  is  done. 
But  what  obedience  owes  the  American  Minister  at  St.  James's,  or  the 
humblest  servant  in  his  household,  to  the  laws  of  Great  Britain  1  He 
is  there  on  the  business  of  his  sovereign — he  is  bound  by  laws  un- 
doubtedly, but  not  of  her  majesty — she  has  none  for  him.  So  in  all 
cases.  Foreigners  come  for  their  country  or  for  themselves.  If  the 
latter,  the  municipal  laws  reach  them — if  the  former,  otherwise.  The 
affair  is  national,  and  to  their  nation  belongs  the  liability. 

Why,  then,  should  not  the  prisoner  be  discharged  !  For  what 
should  he  be  put  on  trial  1  To  find  the  facts  showing  want  of  juris- 
diction 1  Here  they  are — undisputed,  indisputable, — found  already. 
But  it  has  been  said  in  those  quarters  whence,  if  not  legal  arguments, 
speeches  for  courts  of  justice  are  sometimes  drawn,  that  his  trial  is 


I' I   (» 


1 
>*  1 


MCLEOD  S    TRIAL. 


371) 


of  force 
he  Con- 
iving  no 

billed  on 
lire,  and 
ether  his 
t  were  ? 
Governor 

iicgoliu- 
•n,  an  en- 
o  of  our 
What   is 

it  lasted, 

followed 
notion  by 
by  armed 
they  con- 
;  of  force, 
ter.     Our 
undisguis- 
,  who  will 
jard — who 
nicipal  tri- 
er, no  obe- 
arch  under 
[ey  come  is 

and  under 
ished.    Ex- 

Every  evil 
jat,  then,  if 
tional :  and 
Ir  he  fell  a 

itcrial. 

error,  that 

another,  in 
Irce,  are  re- 

;t   is  done. 

les's,  or  the 

ritainl  He 

ly  laws  un- 
So  in  all 

res.     If  the 

■rwise.  The 

For  what 

int  of  juris- 

Ind  already. 

]  arguments, 

his  trial  is 


k 


necessary  for  the  dignity  of  the  State.  Dignity  of  the  State  !  V\  hat 
dignity  is  there  in  injustice  ?  What  dignity  can  she  derive  from  iier 
Courts  holding  in  durance  a  man  over  whose  conduct  they  luive  no 
jurisdiction  !  What  dignity  can  she  hope  from  her  tribunals  usurp- 
ing cognizance  of  the  affairs  of  nations  !  Dignity!  because  his  re- 
lease liiis  iKit  boon  refincsted,  but  demanded  !  Hoons  are  craved, 
favors  asked,  but  rights  demaiuled — and  if  the  courts  have  no  juris- 
diction, I  ask,  if  ills  release  be  not  a  right  to  be  demanded  ? 

It  is  MOW  some  twenty  years  since  the  occurrence  of  an  event  at 
the  other  extremity  of  the  Union — whatever  analogies  it  may  have 
to  the  affair  at  Schlosser,  this  is  not  the  place  to  urge  them,  or  to 
repel.  Florida  was  invaded:  and  I  am  willing  to  grant  here,  wliat  I 
would  not  elsewhere — that  the  transaction  was  illegal,  and  that  the 
chieftain  by  whose  orders  it  was  done,  exceeded  his  authority,  and 
that  he  merited  all  that  was  charged  against  him  by  the  illustrious 
son  of  Kentucky,  whose  eloquence,  like  the  sacred  bolts  of  ancient 
Jove,  sometimes  hallows  what  it  strikes.  When  that  army  was  as- 
sembled, and  their  chief,  with  the  laurels  of  New  Orleans  fresh  on 
his  brow,  placed  at  its  head,  their  country  said  to  them  : — for  it  is 
hardly  a  figure  to  give  nalions  a  tongue — they  speak  by  their  laws, 
by  their  constitutions,  by  their  authorities,  by  the  very  situations  in 
which  they  place  their  citizens  and  then  leave  them  in  silence — she 
said,  "Him,  wc  trust,  and  do  you  obey.  He  will  sIkjw  you  the  foe  : 
when  you  find  them, — this  banner,  while  it  is  the  covenant  of  our 
protection,  let  it  be  the  incentive  to  your  duty."  The  invasion  is 
over,  the  army  returns — one  of  the  gallant  men,  a  private,  suppose, 
ventures  to  Spain,  is  arrested,  and  the  municipal  courts  go  about  to 
try  him  for  murder.  Who  says,  who  dares  say,  that  his  release 
would  have  been  craved  as  a  boon,  or  even  asked  as  a  favor  \  Would 
our  Minister  have  gone  crawling  to  the  head  of  Foreign  Affairs, 
crouching  before  any  dignitary  of  that  nation,  trailing  the  stars  and 
stripes  in  the  dust  behind,  and  most  humbly  implored  his  discharge  I 
No:  that  soldier  had  performed  his  part  of  the  compact.  He  had  no 
longer  a  duty,  but  a  right  now.  He  had  obeyed — the  price  was  his 
due — that  price,  protection.  His  right  was  high  and  holy — it  would 
have  reached  forth  and  laid  hold  on  the  national  faith — the  national 
honor,  and  clutched  every  sinew  of  the  national  power.  Begged  as 
a  boon,  would  his  release  have  been?  No:  demanded  as  a  right. 
Tl'.e  same  eloquence  which  had  flashed  around  his  Chief  to  destroy, 
would  have  beamed  over  that  distant  and  lowly  private  to  illumine. 
No  "fathering  of  navies — no  musterinsf  of  armies  would  there  have 
been !  If  the  country  had  not  torn  open  that  man's  dungeon,  or 
planted  her  banner  on  his  grave,  she  had  deserved  to  be  blotted  from 
the  race  of  nations.  Dignity  to  tryMcLeod!  Call  it  rather  the 
sacrament  of  infamy — baptism  into  disgrace. 

This  I  repeat  is  a  national  affair  ;  the  wrong  was  national ;  and  such 
be  the  redress.  To  the  authorities  at  Washington  and  St.  James's  it  be- 
longs. Let  them  settle  it  amicably  if  they  can  ;  if  not,  let  them  arbitrate. 
This  failing,  let  them  muster  their  armies,call  home  their  navies,  and  go 
to  trial  at  the  Grand  Assize  of  Nations  and  take  the  solemn  adjudica- 
tion of  God  as  to  the  right.     But  never  let  a  nation,  calling  herself 


Si! 


I 


^ 


nbo 


GOULD  S   nEPORTER. 


♦Mvilized,  just,  humane  and  Christian,  wreak  her  venf^eance  for  a  na- 
tional wronpf  on  an  tinprotected  and  humble  individual,  guilty  of  no 
<!riini'  but  obedience  to  his  country. 

The  prosecution  then  has  these  results.  It  seeks  to  make  the  mu- 
nicipal courts  of  New  York  exercise  jurisdiction  of  the  rights  of  na- 
tions. 

It  deprives  the  national  government  of  the  power  and  control  over 
foreign  relations  conferred  on  it  by  the  constitution,  and  drags  them 
down  to  adjudication  by  the  municipal  laws  of  the  state. 

It  seeks  to  thrust  the  municipal  Courts  between  the  duty  of  sub- 
jects of  foreign  nations  and  their  own  government. 

It  violates  the  indci)endence  of  nations ;  for  what  is  that  independ- 
ence but  the  right  to  be  governed  by  no  law  save  that  by  which  alone 
they  are  bound — the  Great  Common  Law  of  the  World  1 

All  these  great  interests  are  violated  by  the  principles  on  which 
this  prosecution  is  rested.     And  to  hold  the  prisoner  guilty  of  mur- 
der or  any  crime,  would,  as  I  siiid  at  the  outset,  produce  in  interna- 
tioiiMl  law,  a  revolution  the  extent  of  which  no  human  sagacity  could 
foresee.     And  this  it  is,  wliich  gives  the  present  controversy  a  so- 
lemnity far  higher  than  belongs  to  any  considerations  of  mere  war 
or  peace.     War,  indeed,  may  come,  foreign  commerce  be  broken  up, 
frontiers  desolated,  cities  burned,  and  the  land  filled  with   mourning. 
But  it  caimot   last  ;    peace   must    return    with    its   blessings.       The 
mourners  will  find  solace,  if  no  where  else,  at  least  in  the  tomb  ;  the 
desolate  places  will  blossom  again  ;    from   the    ruins   of  cities   will 
spring  new  mansions  nobler  than  the  old,  and  commerce  take  up  her 
march  on  the  deep.     Not  so,  however,  with  the  everlasting  blight  of 
an  evil  principle,  sanctioned  by  the  highest  courts  and   infused  into 
the  code  of  nations.     The  doctrine  that  man  may  be  made  personally 
or  criminally  responsible  to  the  municipal  tribunals  of  another  coun- 
try, for  the  obedience  he  renders  the  authorities  of  his  own,  if  fit  to 
be  established  here,  is  worthy  of  adoption  everywhere  and  of  a  con- 
tinuance through  all  generations.     If  it  be  right  for  this  country  to 
enjoin  upon  the  subjects  of  others,  disobedience  at  the  peril   of  life, 
it  will  be  right  likewise  for  those  others  to  adopt  the  same  rule  to- 
wards this  nation  and  among  themselves.     And  let  it  once  be  so  set- 
tled, and  every  soldier  and  sailor  and  citizen  on  earth,  will,  from  that 
moment,  find  himself  amid  new  liabilities  and  ensnared  by  new  perils. 
If  he  disobeys  his  own  government,  he  is  furnished  with  stripes,  with 
infamy,  with  death ;  but  if  he   adbere   to  his  allegiance,  then,  by 
another,    with   fines,    the  dungeon,    or  the  gallows.      Meanwhile, 
that  other  doctrine,  unknown  to  barbarians,  and  first  seen  on  earth 
only  when  civilization  began  to  dawn,  that  national  wrongs  will  take 
no  atonement  which  is  not  national  also,  will   have  become  greatly 
modified,  if  not  altogether  repealed.     And  then,  how  many  of  the  ties 
which  now  bind  all  in  harmonious  subjection  to  lawfully  constituted 
authority  can  only  be  fancied  by  remembering  how  the  utter  impos- 
sibility of  serving  several  masters  of  conflicting  interests,  produces  a 
general  lawlessness,  and  ends  in  disobedience  to  them  all !     And  what 
atrocities  would  not  creep  into  the  practice  of  nations  can  only  be 
foreseen  by  reflecting  how  national  vengeance  wreaked  on  private 


HI 


MCLEOD  S   TRIAL. 


381 


e  for  a  nn- 
ulty  of  no 

ike  the  mu- 
ights  of  na- 

ontrol  over 
Irags  them 

ity   of  sub- 

t  indcpend- 
vhich  alone 

I  on  which 
ty  of  mur- 
:  in  interna- 
facity  could 
ersy  a  so- 
mere  war 
;  broken  up, 
mourning. 
in  OS.      The 
!  tomb  ;  the 
cities    will 
take  up  her 
ng  blight  of 
nfused  into 
s  personally 
other  coun- 
)wn,  if  fit  to 
id  of  a  con- 
country  to 
eril   of  life, 
me  rule  to- 
e  be  so  set- 
11,  from  that 
r  new  perils, 
stripes,  with 
e,  then,  by 
Meanwhile, 
jn  on  earth 
igs  will  take 
ame  greatly 
ly  of  the  ties 
constituted 
atter  impos- 
!,  produces  a 
And  what 
can  only  be 
,  on  private 


helplessness,  stirs  up  mankind  to  revenge.  And  how  much  of  social 
order  would  then  remain  unshaken,  can  be  known  only  to  that  mind 
which  could  behold  the  combined  operation  of  these  fearful  causes  as 
they  act  and  react  in  the  ever  quickening  progress  of  international 
exasperation. 

But  no  fear.  It  can  never  prevail.  If  adopted  here,  not  surer  is 
sun-light  on  the  tnorrow,  than  that  it  will  be  resisted  by  a  war — a  war 
founded  on  good  faith — that  faith  which  is  at  the  bottom  of  the  social 
compact — the  faith  plighted  by  government  to  her  citizens  of  protec- 
tion to  be  given  for  obedience  rendered — of  every  kind  of  faith  the 
most  sacred.  And  though  all  know  who  they  are  that  are  thrice  armed, 
and  all  know  too  they  are  not  those  whose  adversaries  have  their 
quarrel  just,  yet  whatever  nniy  be  the  result  of  that  strife,  the  (irst 
other  attempt  to  enforce  the  same  principle  will  be  met  by  a  like  re- 
sistance. It  can  never  be  enforced, — never.  All  civilization  will 
rise  against  it  and  it  will  be  arrested  by  the  armed  might  of  the 
world. 


Mo.  4. 


ARUUMENT  OF  THE  ATTORNEY  GENERAL. 

Mr.  Hall,  Attorney  General,  then  addressed  the  Court  on  the  part 
of  the  people. 

The  matter  before  the  Court  is  strictly  a  matter  of  law  ;  this  Court 
is  a  Court  of  Law,  and  I  shall  argue  it  strictly  as  a  question  of  law. 
The  question  before  the  Court  is  not,  as  proposed,  on  demurrer. 
The  case  now  stands  before  the  Court  on  allegations  from  both  sides, 
and  contradictory  proofs.  After  the  intim  ition  which  was  given  by 
the  Court  we  considered  the  demurrer  w  :?!'rawn,  and  put  in  proofs, 
so  that  nothing  is  to  be  considered  as  admli  ed. 

The  prisoner  stands  indicted  for  murder,  on  which  indictment  he 
was  arraigned  and  pleaded  not  guilty.  Notwithstanding  this,  a  mo- 
tion has  been  made,  that  without  any  trial  of  that  issue,  or  without 
disposing  of  the  indictment,  the  prisoner  be  discharged  from  custody. 
There  is  no  pretence  that  he  was  informally  or  illegally  charged  in 
that  indictment.  No  pretence  that  the  return  of  the  Sheriff  shows 
he  was  illegally  committed  or  illegally  detained  in  custody. 

By  common  law,  as  well  as  by  statute  law,  both  of  England  and 
this  Slate,  an  indictment  must  be  disposed  of  by  a  motion  to  quash 
for  defects,  plainly  on  the  face,  yet  by  a  trial  of  the  record,  when  the 
issues  of  law  are  presented  to  the  Court,  or  by  a  verdict  of  the  Jury, 
or  by  nolle  prosequi. 

I  know  of  no  other  way  an  indictment  can  be  disposed  of;  I  have 
heard  of  no  other  way,  and  will  ask  my  learned  friend,  Avhen  he  is 
closing  his  argument,  to  point  out  to  the  Court,  some  precedent,  in 
which  an  indictment  having  been  found  and  the  person  having  pleaded 
to  it,  it  was  afterwards  disposed  of,  except  by  one  of  those  modes 
which  I  have  mentioned,  and  the  present  motion  is  not  any  one  of 
them. 


Ir' 


Ifiij' 


I 


mm 

1! 


iijiii' 


:]^2 


(JOIJLD  S    REPOnTER. 


This  was  n  motion,  iiItogcthtT  without  a  proccdont,  a  mero  cxpcri- 
rriont  on  the  Court,  the  iiist  of  the  kind  that  was  ever  made,  and  1 
trust,  that  if  the  vieiv  I  tai»e  of  the  hiw  be  the  rijrht  one,  tiie  Court 
will  pronounce  on  it  in  siieii  n  manner,  that  such  an  experiment  will 
never  be  repeated. 

By  the  laws  of  Enr^land  a  person  indicted  for  murder  would  not  be 
hroiitrht  before  the  Court  of  Kinpf's  Bench.  Nor  would  a  suit  of  //«- 
hcas  Corpus  be  ^ranted  at  all  under  such  cireumstanccs. 

I  refer  the  Court  to  the  statute  of  Habeas  Corpus,  and  particularly 
to  the  Act  of  .'Jl  Charles  11.,  c'uip.  l!d,  of  which  England  so 
much  boasts,  and  of  wliich  we  boast  also.  In  that  section  which 
makes  it  imperative  r.n  the  Court  to  grant  the  Habeas  Corpus,  cases 
of  this  kind  arr;  expressly  exempted. 

In  the  more  recent  Act  of  George  III.,  which  extends  the 
right,  and  makes  it  the  duty  of  Judges  to  grant  the  writ,  cases  of  a 
commercial  character  are  excepted,  and  they  have  no  right  to  grant 
it  where  the  prisoner  is  charged  with  a  criminal  oHence,  and  if  the 
prisoner  was  to  be  tried  in  his  own  country,  he  would  not  be  let  to 
come  before  a  court  and  be  heard  on  a  motion  for  his  discharge. 

When  a  return  is  made  by  the  officer  in  England,  the  Court  gathers 
tlie  Aicts  from  that  return,  and  by  the  facts  in  this  return  will  the 
Court  determine  w^hether  the  prisoner  is  legally  arrested.  Nor  will 
they  allow  any  other  facts  to  be  presented  to  them  besides  that 
return. 

I  will  now  request  the  attention  of  the  Court  to  one  or  two  cases. 

In  the  case  of  Swallow  vs.  The  City  of  London,  s.  1.  d.  2H7.  The 
plaintiff  was  committed  for  refusing  to  take  the  oath  of  Alderman. 
This  was  returned  to  the  Habeas  Corpus,  and  the  plaintiff  desired  to 
have  liberty  to  plead  the  return,  conceding  that  he  had  no  right  to 
contradict  the  return ;  but  that  matter  consistent  with  the  return 
might  be  pleaded,  and  offered  to  plead  that  he  was  an  officer  of 
the  King's  Mint  and  privileged  from  all  offices  and  taxes.  But  the 
Court  remanded  Swallow  and  refused  bail,  but  directed  that  the  privi- 
lege should  be  suggested  in  the  Crown  Office,  whereupon  the  At- 
torney General  prayed  for  a  writ  of  privilege,  &c.,  to  which  the  city 
answered. 

Gardiner^s  Case.  Cro.  El.  821. — Gardiner  was  committed  on  the 
statute  giving  penalty  of  £10,  for  carrying  bond-guns,  &c.,  contrary 
to  statute.  He  was  removed  by  Habeas  Corpus  to  the  King's  Bench, 
and  the  return  disclosed  that  he  was  a  special  bailifT,  having  a  right 
in  the  execution  of  his  office  to  carry  such  weapons — the  prisoner 
was  not  discharged  by  order  of  the  Court — but  all  the  facts  were  by- 
direction  embodied  in  a  plea  of  justification,  which  was  confessed  by 
the  prosecuting  officer,  and  the  party  discharged  by  judgment  of  the 
Court  upon  the  record. 

So  also  in  the  Act  of  George  III.  56  ch.  p.  100.  This  statute  ex- 
tends the  old  Habeas  Corpus,  and  allows  the  party  to  go  beyond  the 
return,  but  excludes  cases  where  the  party  is  criminally  charsed. 

Amongst  other  cases  decided  in  England,  is  that  of  Leonard  Wat- 
son. This  was  a  case  relative  to  some  of  the  rebels  in  Canada. 
When  they  were  at  Liverpool  a  suit  of  Habeas  Corpus  was  taken  out, 


MCLEOD  S    TRIAL. 


'.i9li 


OYv  cxpcri- 
ulo,  and  1 
tlie  Court 
imont  will 

)uld  not  be 
<iiit  of  Ha- 

firticularly 
nglnnd  so 
ion  M'liich 
pus,  cases 

tends  the 
ases  of  a 
It  to  {Trant 
md  if  the 

be  let   to 
harge. 
irt  pnthcrs 
I  will   the 

Nor  will 
sides  that 

wo  cases. 
!H7.  The 
lldernian. 
lesired  to 

right  to 
le  return 
jfficer  of 

But  the 
the  privi- 

the  At- 
i  the  city 

d  on  the 
contrary- 
's Bench, 
f  a  right 
prisoner 
were  by 
essed  by 
:nt  of  the 

tute  ex- 
pend the 
rged. 
rd  Wat- 
Canada. 
;ken  out, 


and  It  appeared  that  the  ofllocr  in  wIiohc  cnstody  tliey  wore,  made  ii 
t'lilse  return,  and  the  question  was  how  to  ort  at  it.  The  Chief  Jus- 
tice said,  "  liow  far  till"  truth  of  this  return  may  bo  canvassed,  I  do 
not  say."  And  the  (.'ourt  thus  evaded  it,  but  an  application  was 
made  to  attack  the  party  for  niakinnr  a  false  return.  The  Court  Unew 
that  there  was  a  wronjr  return,  and  yet  tliey  were  not  willing  to  al- 
low the  parties  to  show  that  the  return  was  false. 

In  Huslieirs  case,  Vaughan's  Iteps.  1.^)7: 

1.  The  prisoner  is  to  be  discharged  or  remanded  barely  upon  the 
return,  and  nothing  else,  whether  in  the  K.  IJ.  or  Common  Pleas. 

This  was  a  case  of  jurors  committed  to  pay  a  fine  for  verdict  con- 
trary to  law  and  evidence,  in  the  Sessions.  Discharged  on  ground 
that  the  cause  was  not  good. 

(This  is  said  in  Bethell's  case,  t  Salk,  ;31S,  to  be  the  first  case  in 
which  a  prisoner  committed  by  0.  and  T.  was  discharged  without 
writ  of  error.) 

I  therefore  say,  that  if  the  prisoner  was  now  before  the  King's 
Bench,  he  would  not  be  allowed  to  produce  any  testimony  except 
what  appears  in  the  return  of  the  Sheriff. 

It  is  admitted  that  our  statutes  have  gone  somewhat  further.  Hy 
our  revised  statutes,  the  court  is  rc(iuircd  to  inquire  into  the  returns, 
and  if  there  is  no  legal  cause  shown  for  his  detention,  it  shall  dis- 
charge the  prisoner;  but  if  it  appears  that  the  prisoner  is  committed 
for  a  criminal  oflence,  he  shall  not  be  discharged.  See  IS,  p.  (iGO. 
The  prisoner  may  deny  the  facts  stated  in  the  return,  and  may  allege 
facts  to  show  that  he  is  entitled  to  his  discharge. 

I  contend  that  this  provision  does  not  apply  to  a  prisoner  after  in- 
dictment. And  one  reason  is,  that  the  indictment  of  a  grand  jury  is 
in  the  nature  of  a  final  judgment  of  a  tribunal  having  exclusive  juris- 
diction of  the  subject  matter.  The  indictment  of  a  grand  jury  is  not 
an  interlocutory  proceeding.  It  is  a  matter  of  which'  no  court  but 
the  grand  jury  has  jurisdiction.  This  Court  has  no  control  over  the 
finding  of  a  grand  jury.  And  if  this  Court  discharge  the  prisoner,  by 
doing  so,  they  try  the  indictment  and  assume  a  control  over  the  in- 
dictment, which  the  law  has  never  given  any  tribunal. 

There  is  another  reason  why  that  section  of  that  statute  cannot 
apply  to  a  prisoner  after  indictment. 

The  provision  is  that  the  prisoner  can  make  allegations  or  proofs 
to  show  that  he  is  entitled  to  his  discharge,  and  it  goes  on  to  show 
if  it  is  not  a  criminal  matter,  the  plaintiff  or  the  State  can  give  coun- 
ter proofs  or  allegations.  But  after  a  man  is^held  by  indictment,  this 
Court  cannot  examine  the  evidence  on  which  that  indictment  was 
found.  That  is  a  matter  which  the  grand  jury  is  bound  to  keep  to 
themselves.  How  then  can  this  Court  decide  on  the  correctness  of 
the  finding  of  the  grand  jury,  when  by  law  the  testimony  on  which 
the  finding  was  made  is  not  before  the  Court  or  ever  can  be  1 

I  will  illustrate  this  by  one  or  two  cases : 

In  the  case  of  Rex  vs.  Dalton,  2  Stra.  911,  the  defendant  had  the 
misfortune  to  kill  his  schoolfellow.  Return  to  Habeas  Corpus  before 
the  Chief  Justice,  that  prisoner  was  committed  by  the  Coroner  for 
manslaughter,  prayer  for  bail.     Chief  Justice. — The  return  of  Coro- 


i 


Si 


Ui 


K|.. 


w 


I  : 


A 


If 


I   -!: 


;ifl4 


tiOtri,D  rt    KKI'OUTEIl. 


nor  is  no  mason,  for  if  tlic  (IcpnsitioiiH  niado  it  iniirdor,  he  would  nut 
Itiiil  him  ;  or  roiiira,  if  they  aniounttMl  only  to  niaiislaii^htrr,  ho 
uoiiM  hail  ihoiiL'li  the  ('oroiu'r's  iiH|iifst  found  il  murder.  The  dis- 
tiurlioM  is  Iti'twriMi  a  Coroiier's  iM(|uest  when  the  Court  can  look  into 
th(!  di'positious,  and  an  indictment  when  the  evidence  is  secret. 

See  al.-^o  iitu'tl  Mohan's  case,  1  Salk.  lOH.  Ihiil  may  he  allowed 
after  a  (/'oroner's  iu(|uest  liudin^  murder,  hut  not  after  iudictment  ; 
he(;aiise  the  Coroner  sometimes  proceeds  upttn  depositions  taken  iu 
writing;,  which  we  may  look  into  ;  hut  if  one  he  foimd  guilty  of  nmr- 
dor  hy  11  irraad  jury,  the  Conn  canuol  take  notice  of  their  evidence, 
which  they  hy  I  heir  oath  are  liomul  to  conceal. 

See  also  ii>  l)elheir»  case: 

]{i'x  vs.  Uethell,  1  Salk.  'WJ.  The  Court  refused  to  discharfjc  on 
Habeas  Corpus,  althoun^h  the  connnitment  hold  nau^rht,  hut  left  the 
prison<'r  to  his  writ  of  error.     The  defendant  had  heeii  indicted. 

If  thes(>  points  are  correct, — if  it  is  true  that  this  Court  cannot 
look  hehind  tlie  iinlictment,  and  sec  the  evidence  on  which  the  grand 
jury  found  their  verdict, — therefore,  as  a  nnitter  of  course,  tlie  pro- 
visions of  the  statute  could  not  bo  extended  to  a  prisoner  after  indict- 
•  ueut,  ami  the  ar«fumenl  would  end  there.  The  Sheriir  shows  a  regu- 
lar and  legal  return,  and  that  ends  ti»e  case  in  this  Court. 

I  re<^ret  heiui^  compelled  to  go  into  any  further  arirumrnt  on  this 
point,  hut  as  the  Court  expected  the  ease  to  he  placed  fully  helore 
them,  unci  as  the  counsel  on  the  other  side  went  into  general  consid- 
erations, 1  will  also  proceed,  and  examine  what  are  the  facts  and  tlie 
scope  of  tliis  case. 

It  is  no  more  than  this.  There  was  a  strong  excitement  existin;, 
along  the  borders,  and  men  on  both  sides  were  arrayed  against  each 
other.  A  rebellion  broke  out  in  Canada,  and  some  of  the  rehels  who 
fought  there  lied  here,  and  excited  the  sympathies  of  some  of  our 
citizens.  They  went  hack  to  Navy  Island,  which  is  hcyond  our  ju- 
risdiction, and  some  of  our  citizens  followed  them,  and  there  were 
great  apprehensions  of  violence,  both  in  Canada  and  in  our  territo- 
ries. And  if  the  Court  will  look  at  the  papers  in  this  case,  they 
show  that  our  governments  at  Albany  and  Washington  were  doing 
every  thing  they  could  to  prevent  an  infringement  of  our  obligations 
with  England.  The  District  Attorney  of  the  United  States,  and  of 
this  State,  and  all  the  oliicers  of  the  government  at  Albany  and  Wash- 
ington, evinced  the  greatest  desire  to  prevent  any  collision  between 
our  citizens  and  the  subjects  of  England.  And  the  letter  of  Mr. 
Rogers  of  BufTalo,  the  District  Attorney,  distinctly  said  that  the  crisis 
was  past,  that  our  people  were  quiet,  and  that  the  patriots  had  left 
there,  and  then  the  danger  was  in  a  great  measure  overcome. 

Under  these  circumstances  this  midnight  murder  in  our  territories 
was  made,  and  Durfee,  one  of  our  citizens,  was  murdered  on  our  own 
shores.  And  after  this  murder  had  remained  for  three  years  without 
any  explanation  or  satisfaction  from  England,  the  hand  that  commit- 
ted the  deed,  the  man  that  said  he  killed  Durfee,  is  found  within  our 
jurisdiction,  brought  before  our  magistrate,  and  proved  on  the  strong- 
est evidence  rarely  brought  before  a  committing  magistrate,  guilty 
of  murder,  and  the   magistrate  commits  him.      And  I  might  say 


mclkod'h  trial. 


3er) 


Is  who 

of  our 

our  ju- 

jre  were 
territo- 

ise,  they 
doing 

igiitious 

and  of 

Wush- 

)et\vcen 

of  Mr. 

le  crisis 

lad  left 


strong- 
;,  guihy 
ght  say 


more  :  that  nt  that  time  every  effort  wiih  iniuh^  to  hnvo  him  discharg- 
ed, lie  was  nrge«l  to  get  liis  witnesses  to  prove  an  alihi,  that  the 
rnagisiriites  might  h't  him  tjo,  hut  the  pris<iner  fuih-d  to  do  il.  'I'here 
waH  no  hittcrneHH  of  feeling  eviiced  lowanls  him,  no  s|)irit  of  re- 
venge or  Initred  manifested,  nor  any  other  disposition  shown,  hut  that 
the  hiws  of  this  state  shonhl  not  he  tramph'd  on  wilh  impunity. 

I  apprehend  this  is  all  the  case  they  have  mad(>  out.  The  horders 
were  inllnnuMl,  as  ihey  will  prohahly  l)(!  again  ami  again,  as  long  ns 
(.Canada  iH  under  one  Hovereign  and  this  state  iintler  dillerent  juris- 
diction. 

The  next  (|neslion  is,  if  the  court  will  go  heyond  the  indictment, 
what  facts  will  the  Court  consider.  1  cfiiiteinl  that  the  Court  cannot 
consider  any  iiu'ts  iiliit/nlc,  excr-jjt  what  go  to  the  illegality  of  tlie 
commitment  or  deteniion,  not  to  the  guilt  or  innocence  of  the  party. 
The  words  in  the  statute,  ""entitled  to  his  disctharge,"  are  imt  e((uiva- 
lent  to  the  words  not  guilty.  Sections  I'i  and  ['.i  instruct  the  Conn 
to  in(|uirc  as  to  the  legality  of  the  commitmenl,  hut  an  iuquiry  as  to 
the  legality  of  his  detention  hy  no  means  involves  an  in(|uiry  as  to 
his  guilt  or  innocence.  The  distinction  is  a  hroad  «>tie,  and  essential 
to  he  nutde  ;  and  if  the  Court  does  not  make  that  <listinction,  where 
will  it  stop  I  How  prevent  the  most  daring  imirderer  to  he  brought 
to  the  bar  of  this  Court  for  trial  without  a  jury  1  'J'he  wonls  of  the 
statute  arc  broad  ;  it  says,  "  in(|uirc  of  the  party  entitled  to  he  dis- 
charged." 

If  the  language  of  the  statute  means,  is  the  party  innocent,  where 
is  the  Court  to  stop  !  In  every  case  of  murder  the  parly  can  allege 
that  he  is  an  innocent  man,  and  claim  to  be  discharged  without  trial 
by  jury.  If  the  Court  can  cxfimine  into  the  innocence  of  any  party, 
nothing  can  prevent  them  from  examining  into  the  most  complicated 
case  of  guilt. 

But  the  Court  has  no  such  power.  To  illi/-trato  my  argument  I 
will  suppose  the  case  of  an  ambassador  from  u  foreign  power  being 
arrested  and  committed,  and  that  he  appears  before  the  Court  on 
Habeas  Corpus  and  says  he  is  the  ambassador  of  a  foreign  power, 
sent  here  by  virtue  o(  treaties.  In  such  a  case,  the  Court  could  con- 
sider the  I'act  because  it  is  a  fact,  which  goes  not  to  establish  his 
guilt  or  innocence,  but  only  his  exemption  from  trial. 

But  suppose  a  man  to  kill  another  in  self-defence  and  that  he  was 
indicted  for  murder,  and  came  before  a  Court  and  offered  to  show 
that  the  homicide  was  in  self-defence,  could  this  Court  listen  to  him  \ 
Supposing  that  he  was  a  peace-officer  and  while  making  an  arrest 
was  necessarily  obliged  to  take  a  man's  life,  could  this  Court  in  such 
a  case  listen  to  him  1  Clearly  not.  Suppose  that  a  Sheriff  executed 
the  sentence  of  a  Court ;  he  might  be  guilty  of  murder  by  executing 
the  criminal  at  a  different  place  and  manner  from  that  stated  in  his 
warrant.  Suppose  he  is  indicted  for  it,  and  brings  the  record  and 
says  that  it  was  in  pursuance  of  the  sentence  of  the  Court  he  did  it, 
could  that  Court  listen  to  him.  How  could  that  Court  in  such  a  case 
enter  into  any  inquiry  as  to  whether  the  Sheriff  had  an  excuse  for 
acting  as  he  did  1    That  would  be  a  question  only  for  a  jury.    It  is 

49 


» 


.ii-H 


386 


GOULD  S    REPORTEK. 


therefore  evident  that  no  matter  how  plain  the  case  is,  this  Court 
cannot  listen  to  any  matter  of  jj-uilt  or  innocence. 

If  the  governor  of  this  state  calls  out  the  militia  to  execute  the 
law,  and  one  of  them  kills  a  citizen,  it  might  or  it  might  not  be  mur- 
der, according  to  the  circumstances  ;  but  suppose  he  offered  to 
present  those  circumstances  to  this  Court,  would  the  Court  listen 
to  him  1 

Suppose  the  governor  sent  a  certificate  that  the  soldier  killed  the 
man  by  his  order,  would  such  a  document  produce  any  sentiment 
but  astonishment,  and  should  we  be  called  on  to  pay  respect  to  such 
an  excuse  of  authority  on  the  part  of  a  foreign  government,  which 
would  not  be  tolerated  if  coming  from  the  executive  of  our  own 


government  1 

The  return  of  the  Sheriff'  shows  the  legality  of  the  commitment 
and  detention,  and  there  is  no  fact  to  show  the  illegality  of  either. 

After  the  party  was  arrested  and  indicted,  and  the  witnesses  exam- 
ined, time  was  given  to  the  prisoner  from  the  twelfth  to  the  eighteenth 
of  the  month  to  procure  his  witnesses,  and  every  facility  was  extend- 
ed to  him  for  the  purpose,  and  after  calm  consideration  on  the  part 
of  the  magistrate,  he  felt  bound  by  his  oath  to  detain  him.  He  re- 
mained in  that  situation  until  the  facts  were  placed  before  the  grand 
inquest.  And  I  will  here  say  that  the  grand  jury  which  arraigned 
him,  was  not  made  up  of  "  patriots  or  those  sympathisers,"  but  of 
some  of  the  calmest  and  most  unprejudiced  men  in  the  country,  as 
cool  and  dispassionate  as  the  grand  inquest  of  any  county  in  New 
York  ;  though  living  in  its  borders,  in  Niagara  county,  they  had  no 
feeling  to  induce  them  to  find  a  verdict  against  the  prisoner,  unless 
his  guilt  was  fully  borne  out  by  the  strongest  facts.  And  the  fore- 
man of  this  grand  jury  was  a  member  of  the  Society  of  Friends. 

Counsel  for  the  prisoner  denied  this. 

The  gentleman  at  the  other  side  says  I  am  not  correct,  that  he  was 
not  the  foreman.  But  he  was  at  least  one  of  that  grand  jury  who 
found  the  bill  of  indictment.  And  this  man  who  did  so  was  one 
whose  principles  and  nature  made  him  abhor  the  shedding  of  human 
blood.  But  to  his  conscience  the  act  had  been  so  clearly  proved 
and  the  evidence  of  it  was  so  strong,  that  in  regard  to  the  oath 
which  he  had  taken  on  the  inquest  he  could  not  hesitate  to  say  it  was 
a  true  bill. 

What  weight  then  is  to  be  attached  to  the  fact  that  the  transac- 
tion was  avowed  by  the  British  government  1  Does  that  alter  the 
state  of  things  1 

This  order  being  avowed  by  the  British  minister,  the  effect  of  that 
order  can  operate  but  in  one  of  two  ways.  First,  as  a  justification 
of  the  prisoner  to  establish  his  innocence,  or  secondly,  admitting 
that  he  is  guilty  as  charged  in  the  indictment,  the  order  is  then  to 
act  as  a  protection  to  exonerate  him  from  the  operation  of  our  laws. 

In  the  first  point  of  view,  as  a  justification  of  the  prisoner,  it  is  a 
fact  exclusively  for  the  consideration  of  the  jury,  and  comes  not  in 
accordance  of  the  indictment.  It  charges  him  with  having  ma- 
liciously killed  the  man,  but  the  avowal  of  the  British  government 
says  he  did  it  in  discharge  of  his  duty.     It  is  therefore  a  fair  issue 


the 
ed,  , 


der, 


they 


MCLEOD  S    TRIAL. 


38" 


13  Court 

cute  the 
;  be  mur- 
fered  to 
rt  listen 

:illed  the 
;entiment 
t  to  such 
nt,  which 
our  own 

nmitment 
F  either. 
ses  exam- 
jighteenth 
as  extend- 
n  the  part 
I.    He  re- 
thc  grand 
arraigned 
•s,"  but  of 
;ountry,  as 
ty  in  New 
ley  had  no 
ler,  unless 
d  the  fore- 
:iends. 

lat  he  was 

jury  who 

was  one 

of  human 

rly  proved 

o  the  oath 

>  say  it  was 

le  transac- 
t  alter  the 

feet  of  that 
astification 

admitting 
lis  then  to 
If  our  laws. 
Iner,  it  is  a 

les  not  in 
Jiaving  ma- 
^ovemment 

,  fair  issue 


for  the  jury.     If  he  did  it  from  duty  and  not  from  malice,  I  presume 
the  jury  will  find  iiim  not  guilty  of  murder. 

I  presume,  if  the  order  of  the  British  Government  is  to  have  any 
effect,  it  must  he  in  this  way.  I  see  no  other  way.  I  can  see  no  rea- 
son why  a  foreign  order  can  have  an  effect  different  from  an  order 
of  our  own  government  ;  and  if  such  a  Axet  could  prol(;ct  one  of  our 
soldiers,  in  order  to  do  so,  it  must  be  placed  before  a  Court  and  jury, 
and  not  before  a  Court  to  be  tried  as  a  mere  abstract  question  of  law. 
If  it  is  to  have  any  effect,  it  is  a  matter  for  the  jury  to  consider, 
whether  the  prisoner  out  of  his  own  malice  killed  Durfee,  or  whether 
the  evidence  in  the  case  gives  the  murder  such  a  color  a.s  it  receives 
in  the  language  of  the  avowal  by  the  British  Government. 

The  ground  on  which  the  British  Coveniment  makes  the  demand, 
is  that  the  transaction  for  which  McLeod  was  arrested,  "  was  of  a 
publi*c  character,  planned  and  executed  by  persons  duly  empowered 
by  her  Majesty's  colonial  authorities  to  take  any  steps,  and  to  adopt 
any  acts  which  might  be  necessary  for  the  defence  of  her  Majesty's 
Territories,  and  for  the  protection  of  her  Majesty's  subjects,  and 
consequently  they  were  doing  their  duty,  &c." 

If  I  understand  the  effect  intended  by  this,  't  is  to  put  the  trans- 
action on  the  ground  that  the  prisoner  was  not  guilty  of  any  criminal 
act,  but  was  performing  an  act  of  duty.  And  if  it  were  his  duty  to 
kill  Durfee,  it  was  consequently  not  murder  ;  and  the  jury  will  so 
find  it.  This  alleged  question  of  duty  clearly  involves  a  matter 
which  must  go  before  a  jury,  to  try  whether  he  was  right  or  wrong, 
but  cannot  be  a  proper  question  for  the  decision  of  this  court.  And 
the  question  of  law  as  to  whether  he  was  legally  arrested  and  detain- 
ed, has  nothing  whatever  to  do  with  the  question  of  duty. 

It  seems  to  me  that  there  arc  insuperable  difficulties  in  the  way  of 
the  Court  taking  a  different  view  of  the  matter.  The  Court  must  say 
was  this  invasion  right  or  wrong,  which  fact  could  not  be  presented 
now.  There  is  also  another  question,  which  perhaps  as  a  question  of 
law  this  Court  could  decide,  which  is,  supposing  that  the  party  acted 
under  illegal  orders,  whether  those  orders  would  be  a  protection  for 
them. 

Another  question  would  be,  Avas  the  party  guilty  of  any  excess  in 
executing  his  orders  1  If  he  went  beyond  the  order  or  aside  the  or- 
der, that  would  be  a  question  for  a  jury,  and  I  think  that  question 
alone  would  be  fatal  to  this  motion;  for  that  is  a  question  oi  which 
this  Court  cannot  judge.  Whether  there  was  excess  in  this  case,  is 
a  question  -vhich  should  go  before  the  jury  under  the  restrictions  o( 
the  Court,  to  find  a  verdict  in  it  when  all  the  evidence  was  brought 
out. 

Another  suggestion  arises,  which  is,  that  in  considering  the  ques- 
tion in  that  way,  the  Court  can  give  the  same  effect  to  the  order 
which  would  be  given  to  it  by  a  court  in  England.  They  have  made 
the  case  their  own,  and  ought  to  be  satisfied  if  the  same  laws  which 
they  boast  of  are  here  administered  and  In  the  same  manner.  If  the 
Court  ought  to  consider  this  order  as  a  justification,  i^is  of  course  a 
question  for  the  jury,  as  that  would  be  giving  to  the  order  of  the 


i 

I 


II: 


■n 

I' 

Hi. 


398 


GOULD  S   REPORTER. 


Rritish  Government,  the  same  effect  which  would  be  given  to  it  in  a 
court  of  England. 

In  the  case  of  Gardner,  Kelyrig's  Rep.  p.  46,  he  and  nineteen 
others  were  indicted  for  breaking  open  the  house  of  Hutchinson  in 
Cheapside,  and  the  evidence  was,  that  Darlington,  the  Secretary  of 
State,  by  order  of  the  King,  made  out  an  order  to  arrest  certain 
men,  and  he  heard  they  were  then  holding  a  meeting  at  Hutchinson's 
house.  Some  of  the  soldiers  broke  open  the  house  and  some  of 
them  took  away  articles  from  it. 

Here  was  a  case  where  soldiers  acting  under  the  order  of  their 
own  government  were  indicted. 

There  was  no  objection  interposec.  that  they  had  acted  under  the 
orders  of  the  Secretary  of  State.  The  Court  did  not  in  this  case 
obey  the  mandate  of  the  Executive,  but  opened  the  laws  and  laid 
down  and  carried  out  the  laws.  Here  was  a  case  in  England,  some- 
v/hat  similar  to  the  one  that  occurred  here.  There  the  party  arrest- 
ed men  illegally,  broke  open  doors,  and  stole  away  articles.  This 
was  not  m  pursuance  of  their  orders,  neither  was  the  killing  of  Dur- 
fee  in  pursuance  of  the  order  to  destroy  the  Caroline. 

If  then  the  motion  now  before  the  Court  prevails,  you  will  then 
be  administering  the  law  to  the  prisoner,  not  as  it  would  be  admin- 
istered to  him  in  England,  or  as  you  would  administer  it  to  our  own 
citizens  acting  under  the  order  of  an  executive  officer  iu  our  own 
country.  And  I  will  ask  the  counsel  when  summing  up,  to  show  that 
the  order  of  an  executive  should  have  more  efficiency  when  execut- 
ed by  foreigners  on  our  own  territories,  than  it  would  have  when 
executed  by  our  own  citizens  on  our  own  soil,  or  by  the  same  foreign- 
ers on  their  own  soil. 

I  will  now  ask  this  Court  to  consider  this  order  in  the  only  other 
point  of  view  it  can  be  considered,  as  a  ground  on  which  the  Court 
can  discharge  the  prisoner 

Let  us  suppose  him  to  be  guilty,  and  that  this  order  is  to  have  the 
effect  of  protecting  the  party  from  the  authority  of  the  laws  of  this 
State.  In  that  view  it  would  be  a  pertinent  question  for  discussion, 
on  this  motion,  and  in  no  other  view  of  it. 

Considering  it  in  this  way,  there  are  three  propositions  which  are 
to  be  considered  before  thu  prisoner  can  be  discharged.  The  first  is, 
was  the  order  of  the  British  Government  sufficiently  authenticated 
by  the  avowal  of  the  British  minister  1  It  would  be  more  satisfacto- 
ry to  have  the  order  itself,  but  the  authenticity  of  it  is  not  contested. 
The  second  proposition  is  that  the  order  is  not  set  forth  with  suffi- 
cient particularity  in  the  letter  from  Mr.  Fox  to  Mr.  Webster,  to 
show  that  it  covers  the  act  for  which  the  prisoner  is  indicted.  The 
third  is  that  the  order  from  a  foreign  government  can  protect  a  mur- 
derer from  trial  in  this  btate. 

As  to  the  second  proposition,  the  order  in  the  letter  from  Mr.  Fox 
to  Mr.  Webster  is  not  sufficiently  definite  for  the  Court  to  act  upon 
it.  That  letter  says  that  the  transaction  for  which  the  prisoner  has 
been  arrested,  was  "  planned  by  persons  empowered  by  her  Majesty's 
Government."  Was  the  transaction  which  these  persons  planned, 
the  murder  of  Durfee  1    Such  a  supposition  is  absurd.     What  it  wa» 


MCLEOD  S   TRIAL. 


389 


Ik 


to  It  m  a 

nineteen 
jhinson  in 
jretary  of 
St  certain 
tchinson's 
I  some  of 

er  of  their 

under  the 
I  this  case 
s  and  laid 
and,  some- 
irty  avre  st- 
iles. This 
ng  of  Dur- 

a  will  then 
,  be  adm  in- 
to our  own 
ill  our  own 
0  show  that 
;ien  execut- 
have  when 
me  foreign- 
only  other 
the  Court 

to  have  the 
aws  of  this 
discussion, 

which  are 
The  first  is, 
thenticated 

satisfacto- 

contested. 

with  suffi- 
W^ebster,  to 
cted.  The 
tect  a  mur- 

om  Mr.  Fox 
to  act  upon 
risoner  has 
;r  Majesty's 
ns  planned, 
l^hat  it  wai 


we  are  left  to  guess,  and  without  looking  to  public  rumors  for  inform- 
ation, this  Court  cannot  know  what  that  public  tianmction  was. 
We  know  from  public  rumor  that  it  was  to  destroy  the  Caroline,  but 
we  have  not  the  authority  of  this  letter  for  it.  The  Court  must 
therefore  see  from  this  document  it  is  not  sufficiently  definite  to 
show  that  the  transaction  it  speaks  of  is  the  occurrence  for  which 
the  Grand  Jury  have  found  their  indictment. 

It  also  says  that  they  were  authorized  to  take  any  steps  necessary 
for  the  defence  of  her  Majesty's  subjects.  Can  this  Court  decide 
that  the  murder  of  Durfee  was  necessaiy  for  the  defence  of  her  Ma- 
jesty's subjects.  Thus  far  the  Court  must  go.  The  Court  must  say 
that  the  murder  was  necessary  under  the  order  for  the  protection  of 
her  Majesty's  subjects. 

The  third  proposition,  which  is  the  main  point  of  the  whole  dis- 
cussion, is  that  the  order  of  a  foreign  government  will  protect  its 
agents  from  trial,  though  guihy  of  murder.  We  assume  that  the 
charge  is  true.  No  matter  what  his  guilt.  We  shall  not  inquire 
into  it,  and  must  assume  that  he  is  guilty.  And  we  must  then  as- 
sume that  the  order  of  a  foreign  government  can  protect  them  from 
a  trial  in  this  State,  although  gi\ilty  of  murder.  The  proposition  re- 
lies on  the  order,  not  as  a  justification,  but  as  a  protection. 

In  connection  with  this  proposition  I  will  answer  some  of  the  other 
propositions  of  the  gentleman  who  addressed  the  Court  on  the  open- 
ing of  this  case. 

Some  of  those  propositions  are  false,  and  some  of  them  are  true, 
but  have  no  application  to  this  case.  He  laid  down  that  whatever  a 
man  does  by  order  of  his  sovereign,  he  cannot  be  held  personally 
responsible  for  it.  That,  generally  speaking,  is  a  true  proposition, 
hut  it  is  only  true  as  regards  his  own  sovereign,  as  concerned,  and 
to  far  as  the  order  is  duly  carried  out  and  not  deviated  from.  But 
it  cannot  be  inquired  into  between  him  and  his  own  sovereign  if  he 
went  beyond  the  order.  But  between  him  and  any  other  sovereign 
it  hass  no  application.  The  gentleman  said  that  the  person  would  be 
subject  to  punishment  if  he  did  not  obey  his  sovereign,  but  that  has 
no  application  here,  as  the  prisoner  was  a  volunteer  and  a  citizen, 
and   not   acting   under   involuntary   or   compulsory   orders   of  his 


sovereign. 


Vattel  says  that  those  not  belonging  to  the  army  are  not  recogniz- 
ed by  the  usages  of  war,  and  if  the  peasantry  mix  in  war  they  are 
not  entitled  to  the  privileges  of  men,  but  are  cut  down  wherever 
they  are  met. 

The  prisoner  was  a  civilian  and  not  an  officer  of  the  army  or  navy, 
but  volunteered  to  follow  Capt.  Drew  "  to  hell."  If  then  he  was  a 
volunteer  to  do  things  in  violation  of  the  laws  of  God  and  man,  I  do 
not  know  any  principle  of  national  or  municipal  law  which  can  cover 
his  conduct. 

In  the  times  of  the  Roman  republic,  soldiers  Avere  sworn,  and 
none  others  were  entitled  to  the  laws  of  war  who  were  not  so.  And 
Vattel  says  that  none  but  soldiers  and  sailors  are  "entitled  to  the 
usages  of  war.  And  if  civilians,  (like  the  prisoner,)  go  and  place 
their  consciences  in  other  men's  hands,  to  do  he  knows  not  what,  or 


I 


>• 


390 


GOULD  S   REPORTER. 


go  he  knows  not  where,  he  cannot  be  protected  by  such  an  order, 
for  he  makes  the  act  his  own. 

The  gentleman  has  stated  other  propositions,  in  which  there  is 
some  truth  :  that  the  law  of  nations  is  part  of  the  common  law,  and 
that  every  nation  and  every  citizen  of  every  nation  is  bound  by  the 
lav.'  of  nations.  And  it  is  an  essential  principle  that  every  one  sub- 
ject to  tiie  law  must  know  that  law,  and  cannot  plead  ignorance  of 
it.  Therefore,  if  tiie  law  of  nations  is  the  common  law,  and  the  pri- 
soner is  guilty  of  murder  under  that  law,  he  cannot  plead  ignorance 
in  his  defence. 

It  is  not  true  that  a  subject  is  bound  to  obey  the  orders  of  his  sov- 
ereign, no  matter  how  much  his  conduct  will  injure  other  nations  or 
individuals.  He  is  bound  to  act  in  conformity  with  the  law  of 
nature  and  of  nations,  and  he  is  legally  and  morally  responsible 
to  do  so. 

It  is  said  that  the  destruction  of  the  Caroline  was  an  occurrence 
of  war,  and  that  therefore  the  civil  courts  are  ousted  from  taking 
cognizance  of  it. 

In  the  case  of  Arbuthnot,  those  who  opposed  what  was  done  by 
General  Jackson,  said  that  Arbuthnot  should  have  been  turned  over 
to  the  civil  courts,  and  it  was  not  replied  that  such  would  not  have 
been  the  right  course,  but  that  there  were  no  civil  courts  there  to 
try  him.  But  it  was  conceded  on  all  hands  that  he.  General  Jackson, 
might  have  given  up  those  men  to  the  civil  courts  had  there  been 
courts  in  Florida  to  take  charge  of  them. 

I  will  now  proceed  with  the  discussion  of  the  great  and  main  pro- 
position :  Is  there  any  power  in  this  Court  to  discharge  the  prisoner, 
without  reference  to  his  guilt  or  innocence,  but  merely  that  there  is 
an  order  of  the  British  Government  to  protect  him  from  our  laws  1 

This  order  must  have  a  binding  effect  on  this  Court  in  one  of  two 
ways.  It  is  either  an  act  directory  to  the  court  emanating  from  a 
superior  jurisdiction  having  power  to  issue  it,  or  derives  its  efficacy 
from  some  general  law,  binding  on  this  Court. 

As  to  the  first  there  is  no  pretence  that  an  order  from  the  English 
Government  has  power  to  bind  this  Court. 

Secondly,  I  deny  that  there  is  any  laAV,  municipal  or  national, 
which  gives  efficacy  to  this  order,  so  as  to  make  it  binding  on  this 
Court. 

It  is  conceded  that  the  law  of  nations  is  part  of  the  common  law, 
of  which  this  Court  has  jurisdiction.  Blackstone  says  that  "  in  arbi- 
trary States  the  law  of  nations,  wherever  it  contradicts,  or  is  not  pro- 
vided for  by  the  municipal  law  of  the  country,  is  enforced  by  the 
royal  power ;  but  since  in  England  no  royal  power  can  introduce  a 
new  law,  or  suspend  the  execution  of  the  old,  therefore  the  law  of 
nations,  whenever  any  question  arises  which  is  properly  the  object 
of  its  jurisdiction,  is  here  adopted  in  its  full  extent  by  the  common 
law,  and  is  held  to  be  a  part  of  the  law  of  the  land."  4  Bl.  67.  So 
that  in  England  no  royal  power  can  ever  alter  or  suspend  the  law ; 
and  no  royal  order  can  suspend  it  here.  It  is  therefore  a  part  of  the 
common  law  over  which  that  Court  has  jurisdiction. 

I  say  that  the  whole  expedition  from  beginning  to  end  could  be 


MCLEOD  S   TRIAL. 


391 


I  an  order, 

h  there  is 
1  law,  and 
ind  by  the 
y  one  sub- 
orance  of 
nd  the  pri- 
ignorance 

of  his  sov- 

nations  or 

he  law  of 

responsible 

occurrence 
rom  taking 

IS  done  by 
lurned  over 
1  not  have 
rts  there  to 
il  Jackson, 
there  been 

[  main  pro- 
le  prisoner, 
lat  there  is 
)ur  laws  1 

one  of  two 
ting  from  a 

its  efficacy 


;he  English 


)r  national, 
ling  on  this 

immon  law, 
\t  "  in  arbi- 

is  not  pro- 
rced  by  the 
introduce  a 

the  law  of 

the  object 

le  common 

Bl.  67.     So 

d  the  law; 

part  of  the 

d  could  be 


brought  here  and  passed  on  as  part  of  the  common  law,  the  adminis- 
tration of  which  is  committed  to  the  charge  of  this  Court. 

I  do  not  propose  to  go  into  the  question  of  the  jurisdiction  of  the 
United  States  courts  and  State  courts.  No  doubt  this  would  be  a 
proper  matter  for  United  States  legislation,  or  it  would  be  a  proper 
matter  for  the  United  States  Court.  Perhaps  the  Constitution  is  suf- 
(iciciiily  broad  to  cover  a  case  of  this  kind,  and  therefore  any  act 
might  be  passed  to  declare  whicli  Court,  Circuit  or  District,  should 
take  jurisdiction  of  it.  But  no  such  act  has  been  passed,  and  there- 
fore no  court  of  the  United  States  has  jurisdiction  of  the  case.  And 
if  so,  where  is  the  murderer  to  be  tried  1  Not  in  the  State  Court,  be- 
ciiuse  it  is  a  question  of  international  law.  Not  in  the  Court  of  the 
United  States,  because  they  have  no  jurisdiction  of  the  offence.  Not 
in  Canada,  because  it  is  not  within  their  jurisdiction,  and  the  counsel 
would  thus  send  him  again  abroad  with  his  brother's  blood  upon  his 
forehead,  if  the  case  is,  as  we  assume  it  to  be,  one  of  rancorous 
malice. 

I,  however,  do  not  mean  to  be  understood  as  expressing  an  opinion 
of  his  guilt,  except  for  the  purpose  of  this  argument. 

The  law  of  nations  is  made  up  of  the  national  law,  the  customary 
law  and  treaties. — 1st.  Kent's  Commentaries,  p.  3. 

In  which  branch  of  this  law  of  nations  can  be  found  the  principle 
contended  for  by  the  gentlemen  of  the  other  side  1 

There  is  nothing  in  the  treaties  between  the  United  States  and 
Great  Britiin  that  an  order  of  the  English  Government  should  pro- 
tect her  subjects  if  they  murder  our  citizens. 

There  is  no  such  principle  in  the  national  or  moral  law.  That  law 
condemns  the  murderer  in  as  strong  terms  as  our  municipal  law,  and 
even  forbids  the  unnecessary  shedding  of  blood  in  open  war. 

"  It  is  an  untrue  position,  when  taken  generally,  that,  by  the  law  of 
nature  or  nations,  a  man  may  kill  his  enemy  ;  he  has  only  a  right  to 
kill  him  in  particular  cases — in  cases  of  absolute  necessity  for  self- 
defence."—!.  Bl.  Com.  411. 

The  principle  is  therefore  to  be  found  neither  in  treaty  stipulations 
nor  in  the  national  or  moral  law. 

Is  it  to  be  found  in  customary  law  ^  Has  it  ever  been  the  practice, 
as  collected  from  the  history  of  nations,  for  one  nation  to  send  such 
orders  to  be  executed  on  the  territory  of  another  1  Has  such  an  or- 
der ever  been  considered  valid  1  If  such  a  military  order  is  valid 
why  not  a  civil  one,  emanating  from  the  same  sovereign  1  And  whe- 
ther it  is  of  a  military  or  a  civil  character,  what  difference  does  it  make 
in  the  offence  I  If  the  sovereign  of  England  can  make  an  order  to 
send  soldiers  and  burn  Buffalo  in  time  of  peace,  why  can  he  not 
make  an  order  for  a  sheriff  of  Canada  to  go  to  Rochester  and  arrest 
McKenzie  1  And  if  he  kill  him  when  making  the  arrest,  why  should 
not  the  order  protect  him  from  trial  1  Can  the  gentlemen  point  out 
to  me  any  difference,  or  why  a  civil  order  should  not  be  as  effica- 
cious as  a  military  one  1 

I  will  now  call  the  attention  of  the  court  to  some  authorities  to 
show  that  invasions  of  this  sort,  by  orders  of  a  foreign  government, 


•^ 


^'  '( 


Um 


!i 


% 


i 

*• 
I 

i 


392 


Gould's  reporter. 


whether  civil  or  military,  are  always  held  a  violation  of  national  law, 
and  are  left  to  be  dealt  with  by  the  jurisdiction  within  which  the 
crime  is  committed. 

I  refer  you  to  Vattel,  b.  11,  chap.  7,  sec.  93  ;  who  says  that  foreign 
nations  "  cannot,  without  an  injury  to  a  State,  enter  sword  in  hand 
into  his  territories,  in  pursuit  of  a  criminal,  and  take  him  from 
thence." 

Thus  trampliujD^  on  the  rights  of  the  State  or  territory  which  they 
invade.  It  is  called  a  violation  of  the  territory,  and  that  nothing 
should  be  repulsed  with  more  vigor. 

The  instructions  given  by  President  Monroe  to  the  commissioners 
at  Ghent,  contain  this  declaration  : 

"  Offenders,  even  conspirators,  cannot  be  pursued  by  one  power 
into  the  territory  of  another,  nor  are  they  delivered  up  by  the  latter, 
except  in  compliance  with  treaties,  or  by  favor."  See  Monroe's  In- 
structions to  the  Commissioners  of  Ghent. 

Vattel,  b.  3,  ch.  2,  sec.  15,  p.  76-i,  shows  that  the  order  from  a 
foreign  government  will  not  protect  a  subject  from  execution.  He 
speaks  of  foreign  enlistment  of  soldiers  within  other  territories,  and 
says  that  foreign  recruiters  are  hanged,  and  justly,  as  it  is  not  pre- 
sumed that  their  sovereign  orders  them  to  commit  the  crime ;  and  if 
they  did  receive  such  an  order,  they  ought  not  to  obey  it,  the  sove- 
reign having  no  right  to  command  what  is  contrary  to  the  law  of 
nations.  Here  is  authority  that  a  subject  is  not  bound  to  obey  the 
order  of  his  sovereign  involving  the  commission  of  crime. 

I  refer  again  to  Vattel. 

B.  3,  chap.  6,  sec.  68 :  "  Nothing  of  all  this  takes  place  in  a  war 
void  of  form  and  unlawful,  more  properly  called  robbery,  being  un- 
dertaken without  right,  without  so  much  as  an  apparent  cause.  It 
can  be  productive  of  no  lawful  effect,  nor  give  any  right  to  the  author 
of  it.  A  nation  attacked  by  such  sort  of  enemies  is  not  under  any 
obligation  to  observe  towards  them  the  rule  of  war  in  form.  It  may 
treat  them  as  robbers.  The  city  of  Geneva,  after  defeating  the  at- 
tempt of  the  famous  Escalade,  hung  up  the  Savoyards,  whom  they 
had  made  prisoners,  as  robbers  who  had  attacked  them  without  any 
cause  or  declaration  of  war.  Nobody  offered  to  censure  this  pro- 
ceeding, which  would  have  been  detested  in  a  formal  war." 

This  would  be  the  case  in  the  present  transaction,  if,  instead  of 
McLeod  coming  here  three  years  after  the  invasion,  he  was  taken  at 
the  moment  and  hung  up.  Then  it  would  have  been  exactly  the 
same  case  as  I  have  cited. 

In  the  case  of  John  Baker,  a  report  of  whose  trial  is  to  be  found 
in  the  House  documents,  No.  90,  20th  Congress,  p.  308.  In  this 
case  Baker  was  a  citizen  of  the  State  of  Maine ;  and  on  the  4th  of 
July,  1829,  he  invited  some  neighbors  to  dine  with  him,  and  put  up 
the  flag  of  the  United  States  and  a  liberty-pole.  For  so  doing  he 
was  arrested  by  the  authorities  of  New  Brunswick,  ahd  was  tried  and 
sent  to  prison,  and  remained  there  seme  time,  when  he  was  enlarged. 
'  And  all  this  time  our  government  solicited  his  discharge.  There 
was  a  question  as  to  the  jurisdiction  of  the  place  where  Baker  lived 


nal  law, 
lich  the 

foreign 
in  hand 
im  from 

ich  they 
nothing 

issioners 

le  power 
lie  latter, 
iroe's  In- 

from  a 
ion.  He 
tries,  and 
J  not  pre- 
le ;  and  if 
the  sove- 
le  law  of 
obey  the 


»  in  a  war 

being  un- 

ause.     It 

he  author 

inder  any 

It  may 

ig  the  at- 

lom  they 

lout  any 

this  pro- 

istead  of 

taken  at 

actly  the 

)e  found 
In  this 
le  4th  of 
put  up 
doing  he 
tried  and 
snlarged. 
There 
ker  lived 


MCLEOD  S   TRIAL. 


393 


when  he  put  up  the  American  flag.  Both  nations  claimed  it,  and  the 
question  wjis  pending  as  to  whom  the  territory  belonged.  The  Bri- 
tish authorities,  however,  did  not  let  the  individual  question  bo 
merged  in  the  national  (juestion.  They  held  him  personally  respon- 
sible, and  tried  and  convicted  him,  although  negotiations  were  then 
going  oVi  at  Washington  and  London.  In  May,  182S,  there  was  a 
letter  from  Mr.  Lawrence  to  Lord  Aberdeen  ;  he  holds  the  following 
language  :  "  How  far  the  United  States  may  regard  it  as  an  aggra- 
vation of  their  original  complaint,  that  the  prosecution  of  New 
Brunswick  was  proceeded  with  during  the  pendency  of  a  diplomatic 
discussion  on  the  right  to  arrest  Mr.  Baker,  and  that  he  was  brought 
to  trial  more  than  two  months  after  a  lormal  demand  for  his  release 
had  been  made  by  an  American  government  to  the  British  minister 
residing  at  Washington,  must  rest  with  the  President  to  decide." 

This  demand  was  made  on  the  ground  that  the  jurisdiction  of  the 
place  belonged  to  us.  But  though  it  was  a  public  affair,  and  then 
the  subject  of  negotiation,  the  British  government  refused  to  re- 
lease him. 

Another  case,  that  of  Ebenezer  Greely,  which  took  place  a  year 
since. — See  House  doc.  1st,  1st  Sen.,  25th  Congress. 

See  his  letter  to  Governor  Dunlap,  12th  June,  1837.  Also  Steven- 
son to  Palmerston,  Sen.  doc.  197,  p.  7,  1841.  Palmerston  to  Steven- 
son, H.  doc.  p.  9  and  10. 

In  this  case  Greely,  an  American  citizen,  was  sent  to  Madawasca 
to  take  the  census,  and  for  so  doing  was  sent  to  jail  by  the  authori- 
ties of  New  Brunswick.  A  demand  was  made  for  his  release  ;  but  it 
seems  that  the  British  authorities  were  not  then  so  expeditious  as 
they  seem  disposed  that  we  should  be  now.  For,  after  much  discus- 
sion, the  British  government  declined  surrendering  Greely,  as  they 
had  formerly  declined  surrendering  Baker.  It  is  true,  that  in  this 
case  there  was  a  question  of  jurisdiction,  as  to  who  Avere  entitled  to 
the  soil,  but  that  did  not  prevent  them  detaining  the  man.  Apply 
this  case  to  the  question  before  us,  and,  according  to  the  argument 
which  has  been  used  in  this  case,  it  was  a  national  affair,  and  the  pri- 
vate injury  was  swallowed  up  by  the  national  one.  And  it  should 
only  have  been  necessary  to  show  an  English  court  that  Mr.  Web- 
ster and  Mr.  Fox  had  it  under  discussion,  and  the  court  would  of 
course  immediately  take  his  chains  off  and  set  him  free. 

Was  it  so  when  the  rights  of  our  citizens  were  at  issue  1  We 
asked  for  his  release,  because  we  owned  the  soil,  or  at  least  it  was  a 
disputed  question,  and  neither  party  by  mutual  understanding  was  to 
exercise  exclusive  jurisdiction  over  it.  But  they  said  that  this  man, 
who  raised  the  liberty  pole,  had  committed  a  treasonable  offence, 
Avhich  could  not  be  passed  over  with  safety.  They  did  not  make  it 
a  question  between  the  two  nations,  but  seized  the  man,  and  said 
that  their  laws  required  that  he  should  be  punished. 

Does  not  this  reasoning  apply  here  1  And  shall  we  let  our  Canada 
neighbors  come  here  and  commit  murder  1  And  shall  we  tell  these 
bandits,  if  you  come  on  our  shores  and  murder  our  citizens  by  order 
of  your  government,  you  only  do  your  duty  1  And  shall  we  thus  let 
men  escape  punishment  both  here  and  in  Canada  on  the  equally 

50 


!'    f 

11 


•!^ 


394. 


GOULD  S   REPORTER. 


novel  and  absurd  doctrine,  that  there  is  no  jurisdiction  to  try  tliem  \ 
A  doctrine  so  monstrous  that  it  couUl  never  be  received  by  any 
Court,  or  can  it  be  supposed  that  it  was  ever  seriously  urged  before 
any  Court  ! 

I  will  lake  you  a  step  further,  and  show,  that  by  the  law  of  na- 
tions these  illegal  orders  are  discredited  even  by  the  usages -of  war. 

Vatlil,  book  3,  chap.  8,  sec.  IM,  speaking  of  whether  an  enemy 
may  be  assassinated,  condemns  it,  and  says  that  the  assassins  should 
be  considered  as  murderers.  He  speaks  of  soldiers  getting  into  the 
camp  of  an  enemy  and  killing  the  general ;  and  he  said  that  even 
though  lawful,  the  persons  doing  it,  when  afterwards  taken,  were  al- 
ways executed. 

I  will  now  refer  to  what  is  a  matter  of  history.  In  our  revolu- 
lionary  war,  when  an  attempt  was  made  by  Sir  Henry  Clinton  to 
send  men  to  corrupt  the  soldiers  of  the  Pennsylvania  lines,  these 
men  were  taken,  and  General  Washington  ordered  them  to  be  imme- 
diately hung. — 4.  Marshall's  Washington,  368. 

Where  then  is  it  to  be  found  in  the  prtictice  of  nations,  that  an  in- 
dividual is  never  held  responsible  for  executing  the  orders  of  his 
sovereign  1  There  is  no  such  principle  in  war  or  peace.  When  the 
order  was  unlawful,  it  was  never  held  as  a  protection  for  the  men 
that  execute  it. 

1  was  surprised  to  hear  the  gentleman  say  that  it  was  dangerous 
to  establish  such  a  principle.  And  I  said,  that  I  thought  it  was  more 
dangerous  to  establish  the  doctrine,  that  a  sovereign  can  protect  his 
own  acts  in  a  foreign  territory.  Gnce  establish  sucli  a  doctrine,  and 
every  petty  expedition  of  marauders  becomes  a  war,  as  the  men  who 
commit  it  cannot  be  held  responsible,  and  there  is  no  resource  left 
but  the  sword.  Such  must  be  the  consequence  of  establishing  the 
doctrine  that  the  individual  is  never  to  be  held  responsible,  but  in 
every  case  the  nation. 

There  is  another  ground  assumed  here,  that  the  offence  of  the  in- 
dividual is  merged  in  the  national  offence.  I  cannot  solve  what  is 
meant  by  such  a  proposition.  Is  murder  an  offence  which  can  be 
transferred  from  one  person  to  another '{  Can  the  malice  of  the  mur- 
derer's heart  be  transferred  or  wiped  out  by  imputing  it  as  an  offence 
to  his  nation  T  If  he  acts  with  the  malice  of  a  murderer,  the  crime 
is  his  own,  fixed  upon  him  for  ever,  and  no  subsequent  order,  except 
of  you,  can  ever  wash  the  stain  of  murder  from  his  hands,  or  transfer 
the  guilt  from  his  heart.  Such  a  d9Ctrine  is  at  once  so  absurd  and 
abominable,  that  carelessness  or  ignorance  can  alone  account  for  its 
ever  having  been  asserted. 

It  may  be  said  that  a  civil  offence  is  sometimes  merged  in  a  crim- 
inal one.  But  not  so  with  crimes.  The  guilt  of  theft  is  not  merged 
in  that  of  murder,  though  the  punishment  of  it  may  be. 

We  can  have  no  stronger  illustration  of  it  than  what  takes  place 
between  the  master  and  his  slave.  Supposing  that  the  latter  com- 
mits an  offence  by  the  mandate  of  the  master,  who  holds  all  but  the 
life  of  the  slave  at  his  disposal.  Was  there  ever  such  a  doctrine 
held,  as  that  the  crime  of  the  slave  is  merged  by  that  of  the  master  \ 
Both  are  alike  punished,  and  there  would  be  no  safety  for  society 


MCLEOD  S    TRIAL. 


aof) 


I  tliem  1 
by  any 

J  before 

IV  of  na- 
•of  war. 
enemy 
s  should 
into  the 
luvt  even 
were  al- 

revoUj- 
linton  to 
es,  these 
)e  imme- 

lat  an  in- 
rs  of  his 
V^hen  the 
the  men 

anarerous 
ivas  more 
•otect  his 
Tine,  and 
men  who 
•urce  left 
shing  the 
le,  but  in 

9f  the  in- 
e  what  is 
h  can  be 

the  miir- 
n  offence 
he  crime 

,  except 
r  transfer 
tsurd  and 
nt  for  its 

n  a  crim- 
t  merged 

ces  place 
tter  com- 

II  but  the 
L  doctrine 
B  masler  \ 
r  society 


. 


were  it  otherwise,  particularly  if  you  could  merge  the  crime  of  mur- 
der by  one  inaii  in  the  criminality  of  another. 

According  to  Vattcl — B.  1,  chnp.  6,  sec.  75 — As  to  emissaries 
coming  into  a  country  to  entice  away  the  useful  subjects  of  a  sove- 
reign, lie  has  in  sucii  case  a  right  to  punijili  them  severely.  Here, 
according  to  Valtcl,  the  punishment  is  cumulative,  and  the  sovereign 
lias  a  riglit  to  claim  redress  from  the  persons  who  employed  them. 

Vattel  docs  not  use  the  sentence  in  the  disjunctive.  He  says  that 
he  may  punish  the  subjects  severely,  and  then  call  on  the  nation 
which  sent  them  for  redress. 

Another  passage  in  Vuttel,  book  2d,  chap.  6,  sec.  75,  says  : 

"  If  the  ofl'ended  State  (in  case  an  individual  of  a  foreign  nation 
commits  a  crime  against  it)  keeps  the  guilty  in  his  power,  he  may 
without  difficulty  punish  him,  and  oblige  him  to  make  satisfaction. 
If  the  guilty  escape,  and  return  to  his  own  country,  justice  may  be 
demanded  from  his  sovereign." 

There  is  one  more  view  to  be  taken,  before  I  leave  this  part  of  the 
subject.  It  has  been  attempted  to  place  the  case  of  the  prisoner  on 
the  footing  of  an  ambassador.  There  is,  however,  little  or  no  anal- 
ogy between  this  man,  acting  under  the  order  of  the  English  gov- 
ernment and  an  ambassador  from  that  nation.  They  stand  on  dis- 
tinct grounds.  At  all  tunes  and  amongst  all  nations,  the  character 
of  an  ambassador  has  been  held  inviolable,  which  arises  from  neces- 
sity and  stipulation.  As,  but  for  the  perfect  protection  thrown  around 
ambassadors,  there  would  be  no  end  to  national  wars.  Necessity 
requires  that  Ave  receive  an  ambassador  and  consent  to  the  condition 
that  he  shall  personify  the  sovereignty  of  the  nation  he  comes  from, 
and  that  throws  round  him  an  inviolability  which  no  other  subject 
or  citizen  receives. 

He  therefore  stands  on  different  ground  from  an  agent  who  comes 
to  effect  an  order.  The  ambassador's  privileges  arise  from  the  ne- 
cessity of  nations,  and  to  avoid  interminable  war.  But  these  reasons 
do  not  apply  to  the  prisoner  at  all.  They  apply  to  none  but  an  am- 
bassador, and  much  less  to  one  who  is  liostis  humani  ge/ieris,  or  in 
other  words  a  murderer.  I  speak  not  of  the  prisoner  but  from  the 
record,  and  on  the  supposition  that  it  is  true.  But  I  do  not  mean  to 
speak  positively,  or  give  an  opinion  of  the  fact  that  he  is  guilty  of 
murder ;  that  is  a  question  for  the  jury,  and  I  wish  to  leave  it  exclu- 
sively to  its  decision. 

But  even  ambassadors,  great  as  are  their  immunities,  are  by  the 
common  laAV  of  England  held  subject  to  be  indicted  for  the  crime  of 
murder.  How  little  ground  is  there  then  to  claim  an  exemption  for 
so  subordinate  an  agent  as  the  prisoner  1 

I  will  refer  to  authorities  on  the  subject,  which  are  adopted  here 
as  well  as  at  Westminster.  Coke's  institute  163,  speaking  of  Am- 
bassadors, says,  "  but  if  a  foreign  ambassador  commits  a  crime  con- 
tra jus  gentium,  or  a  crime  against  the  laws  of  nations,  he  loses  the 
privileges  of  an  ambassador,  and  may  be  punished  here  as  any  other 
alien,  and  not  sent  back  to  his  sovereign,  except  through  courtesy." 

Next,  1st  Hale's  pleas  of  the  CroMrn,  page  99. 
Foster's  Crown  law,  page  188. 


^ 


%■ 


396 


GOtTLO's    REPORTER. 


■'     Ist  Blackstone's  Commentaries,  245-6. 

Vattol,  l{.  l,  chill).  7,  sec.  100. 

Vattel  says.     Book  4.     C.  6.     Sec.  100. 

"  If  an  ambassador  commits  such  atrocious  crimes  as  nflect  the 
safety  uf  inaiikiiid,  if  lie  undertaken  lo  assassinate  or  poison  tlie  Prince 
^\  lu)  has  received  him  at  his  Court,  he  doubtless  deserves  to  be  pun- 
ished as  a  treacherous  enemy,  as  a  prisoner  and  as  an  assassin. 

"  His  character,  which  he  has  so  basely  stained,  cannot  shelter  him 
from  punishment. 

"  Is  the  law  of  nations  to  protect  a  criminal  when  the  safety  of  all 
I'rinces,  and  the  welfare  of  mankind,  call  for  his  punishment '." 

Not  only  an  ambassador,  but  a  Sovereign  himself,  by  the  laws  of 
England,  if  he  comes  into  that  country  and  is  guilty  of  murder,  may 
be  tried  and  executed.  It  was  so  held  in  the  celebrated  trial  of 
Mary  Queen  of  Scots,  on  a  consultation  of  the  most  distinguished 
professors  of  the  common  and  the  civil  law,  that  although  a  sover- 
eign Queen,  while  in  England,  she  was  amenable  to  the  laws  of  Eng- 
land ;  and  she  was  tried  and  executed  for  an  ofTence  alleged  to  have 
been  committed  against  those  laws.  2  Ward's  Law  of  Nations,  p. 
578. 

These  authorities  and  these  precedents  seem  to  me  conclusive 
that  by  the  common  law  of  England  and  of  this  country,  no  ninmu- 
nity,  however  great,  no  station,  however  high,  surrounds  the  party 
with  an  exemption  from  the  liability  to  punishment  for  the  crime  of 
murder. 

Before  concluding  this  argument  I  would  make  some  ggestions, 
on  the  propriety  of  discharging  this  prisoner  by  the  law  officers  of 
the  State  or  by  the  interposition  of  the  Executive  power. 

The  Executive  can  interfere  in  no  way  but  through  the  pardoning 
power,  and  that  is  expressly  restricted  by  our  constitution  to  be  ex- 
ercised only  after  conviction.     Article  2,  sec.  5. 

Nor  is  this  restriction  without  reason.  It  has  arisen  from  the  ex- 
perience of  England  and  from  the  maxims  of  her  statesmen.  It  was 
introduced  eflectually  to  cut  ofT  the  executive  from  the  power  of 
stifling  investigations  and  dispensing  with  laws.  It  was  to  remedy 
the  mischief  disclosed  in  the  decision  of  the  case  of  Sir  Edward 
Hall,  11  Howard's  State  Trials,  page  1165.  And  although  in  the- 
ory the  power  may  exist  in  the  prerogative  of  the  crown  of  England  to 
pardon  a  murderer  before  trial,  it  is  a  power  which  it  is  believed  has 
never  yet  been  exercised.     3  Institute  235,  236. 

It  has  also  been  suggested  that  a  rao/Ze^ro^e^t^z  should  in  this  case 
be  entered  by  the  prosecuting  officer. 

Many  reasons  dissuade  him  from  such  a  course.  The  main  trans- 
action out  of  which  this  indictment  grew  was  a  gross  violation  of  tho 
laws  of  nations.  It  was  an  invasion  and  a  violation  of  our  territory. 
An  ofTence  which  according,  to  Vattel,  should  be  repelled  with  the 
utmost  rigor,  by  a  state  which  means  to  maintain  its  independent 
position  amongst  the  families  of  nations  : — Chancellor  Kent  declares 
that  there  is  no  exception  to  the  rule,  that  a  neutral  territory  cannot 
be  lawfully  invaded.     Kent,  p.  121. 

If  the  Caroline  had  given  just  provocation,  no  time  had  been  af- 


.^' 


f^ 


MCLEOD  S   TRIAL 


397 


of 


forded  or  notice  given  to  the  authorities  of  New  York  to  remove  the 
offence. 

Agiiin  :  Siipposinpf  the  order  for  the  destruction  of  the  ('iiroline  to 
be  u  legal  nnd  valid  order,  there  is  cvidoucc  which  goes  to  show 
that  the  act  for  which  the  prisoner  was  indicted  was  not  recjuired  t>r 
even  contemplated  by  the  order,  and  consequently  cannot  be  justified 
or  protected  by  it. 

After  the  assailants  had  got  peaceable  possession  of  the  boat,  they 
unnecessarily  went  on  our  shore  and  soarcliod  the  adjacent  ware- 
houses to  find  more  victims  to  satisfy  their  insatiable  thirsting  for 
blood. 

There  is  also  evidence  which  goes  to  show  that  the  prisoner  was 
the  very  man  who  pursued,  and  wantonly  and  inhumanly  shot  Durfee 
upon  our  territory,  as  he  was  flying  unarmed  from  the  boat.  If 
these  facts  should  be  established  on  investigation,  the  British  nation 
would  be  the  first  to  repudiate  the  act,  and  to  declare  that  it  was  not 
done  by  their  authority. 

Great  Britain  has  taken  the  lead  amongst  modern  nations,  in  es- 
tablishing the  doctrine,  that  she  will  not  listen  to  a  demand  for  re- 
dress for  o  subsequent  injury  while  a  previous  one  against  herself  re- 
mains unatoned  for.  Witness  her  transactions  with  Spain,  in  1770, 
with  reference  to  the  dispossession  of  her  subjects  at  Nootka  Sound, 
by  the  Spaniards,  and  subsequently,  in  1778,  relative  to  a  similar  dis- 
possession of  her  subjects  at  the  Falkland  Islands. 

These  are  not  referred  to  in  the  spirit  of  reproach,  but  in  a  spirit 
of  respect  anu  admiration.  This  principle  is  one  of  high-toned  na- 
tional self-respect,  and  has  acquired  for  her  a  lofty  and  enviable  po- 
sition amongst  the  nations. 

In  my  early  days,  in  reading  the  records  of  Roman  greatness,  it 
was  not  her  palaces,  nor  her  temples,  nor  the  extent  of  her  domi- 
nions, nor  the  power  of  her  armies,  that  thrilled  me,  but  it  was  the 
magic  power  of  the  exclamation,  even  amongst  the  remote  and  bar- 
barous nations,  "  I  am  a  Roman  citizen."  And  in  modern  times,  the 
exclamation,  I  am  an  Englishman,  has  become  almost  an  equal  pass- 
port and  protection  throughout  the  world. 

When  will  the  time  arrive  when  the  exclamation,  I  am  an  Ameri- 
can citizen,  shall  claim  an  equal  respect  I  Never,  until  we  learn 
with  equal  scrupulousness  to  protect  the  lives,  liberties  and  property 
of  the  humblest  citizen  of  our  republic.  Never,  while  we  disarrange 
the  decent  folds  of  the  drapery  of  our  judiciary,  with  undignified 
haste,  to  obey  the  irregular  and  illegal  demands  of  a  foreign  nation. 


Ho.  5. 


ARGUMENT   OF   MB.    SPENCER. 


J« 


Mr.  Joshua  Austm  Spencer  commenced  his  argument  in  reply,  on 
behalf  of  the  prisoner,  by  observing,  that  he  deemed  it  not  improper, 
in  view  of  what  had  been  said  out  of  doors,  with  regard  to  this  case, 


808 


OOVLD 8    REPORTRR. 


nnd  his  npponnuicc  ««  counB"!  for  the  nccuspd,  to  stnlo  tho  rpliition 
lie  l)i)ro  to  it,  luifi  titu  motion  which  had  hoeii  brought  buforc  the 
Court. 

It  hud  been  said  that  his  appointment  under  the  Federal  Govern- 
in(!nt  should  iaduec  liim  to  relinquish  the  defetie(^  of  Mcl.eod  ;  hut 
he  would  say  to  all  such,  that  they  little  underslood,  either  the  duties 
of  his  odiee,  the  merits  of  the  ([uestiun  involved  in  this  defence,  or 
liis  own  views  of  responsibility,  if  tlioy  thoufrlit  liiin  capable  of  siicii 
conduct :  for  ho  had  yet  to  hMirn  that  n  counsellor  of  the  Stale  of 
New  York  was  called  upon  to  pivc  up  duties  ho  owed  to  his  client, 
because  other  duties,  entirely  compatible  with  the  faithful  disobarpe 
of  his  former  ones,  had  devolved  upon  him.  He  should  endeavor  to 
discharge  both  duties  accordinq;  to  the  best  of  his  ability.  At  an 
early  stage  of  the  proceeding,  and  before  his  appointment  to  oflicc, 
he  had  been  retained  as  t'Minsel  for  McLeod  ;  as  such,  and  not  as 
attorney  for  the  United  States,  he  now  appeared  before  this  Ourt, 
nnd  he  did  not  believe  that  the  duties  he  owed  to  his  client  in  the 
one  case,  would  run  counter  to  those  he  owed  to  his  coimtry  in  the 
other.  All  that  had  been  done  in  this  case  by  his  elorpient  young 
friend  who  opened  this  argument,  and  by  his  partner,  moreover,  had 
been  done  in  conformity  with  hia  views,  or  under  his  advice  ;  nnd  if 
there  was  any  odium  or  crime  in  what  had  been  done,  he  was  willing 
to  bear  his  full  share,  and  answer  therefor  before  the  tribunals  of  his 
country  and  in  the  face  of  the  world. 

The  attempt  to  make  political  capital  out  of  this  question,  which 
he  said  had  been  made  by  some  of  the  partizan  prints  of  both  politi- 
cal parties,  deserves  the  reprobation  of  every  fair  mind.  Its  tendency 
is  to  prevent  an  impartial  trial,  if  a  trial  is  to  be  had  ;  to  strengthen  and 
deepen  the  prejudices  which  already  unhappily  exist  on  both  sides  of 
our  borders ;  to  embarrass  the  negotiations  pending  between  our  own 
and  the  British  Governments,  and  to  expose  them  to  open  rupture. 

Without  doubt,  he  said,  this  is  a  question  as  novel  as  it  is  import- 
ant. The  opposing  counsel  have  argued,  with  much  zeal,  that  this 
motion  to  discharge  has  no  precedent ;  and  he  had  been  charged 
vith  temerity  for  presuming  to  come  into  Court,  to  perform  what  his 
iuty  in  this  motion  required  of  him.  Grant  that  the  motion  is  with- 
out precedent,  and  the  argument  is  briefly  answered.  No  precedent 
can  be  found  within  the  bounds  of  Christendom  for  the  prosecution 
Uself.  No  case  can  be  found  on  the  records  of  the  courts  of  any 
?<.-ilized  nation,  in  which  an  individual  has  been  indicted,  and  sought 
to  be  capitally  punished,  for  obeying  his  rightful  sovereign.  It  is 
indeed  a  hard  dilemma,  to  be  subject  to  be  executed  as  a  traitor  for 
disobedience,  on  the  one  side,  and  as  a  murderer  for  obedience  on 
the<  other. 

The  whole  argument  on  the  other  side  was  founded  on  a  funda- 
mental error,  namely :  they  assumed  as  true,  what  we  utterly  deny, 
that  McLeod  is  guilty  of  murder  ;  and  starting  upon  this  assumption, 
they  have  made,  it  must  be  confessed,  some  little  headway  in  proving 
that  the  Court  cannot  properly  discharge  him.  But  his  guilt  we 
deny ;  and  we  have  come  hither  to  ascertain  the  facts,  and  bring 
together  all  the  attendant  circumstances  of  the  case ;   on  which,  as 


*. 


<<:■■ 


MCLEOD  8   TRIAL. 


309 


which 


now  CKtnbliuhed,  without  dispute,  the  qupntionn  of  Inw  nvino  ;  first, 
what  hus  the  CfHirt  power  [o  4o  ^  nnd  Ht'condly,  how  ought  llio  Court 
to  exer'-isf  tlint  power  ! 

I(Ct  it  111*  be  suppofsod  Ihnt  we  hnve  come  here  to  concede  the  pri- 
Houer's  guilt  nnd  yet  to  solicit  Win  dischurge.  Tiie  motion  in  founded 
on  flu>  asMHinptioM  ilnt  h(>  is  puiltless  of"  L-rinie,  even  if  lie  were  one 
of  tlic  expedition  which  violiUed  our  territory  and  destroyed  tli« 
property  of  one,  and  the  life  of  another  of  our  eitixen^. 

\i)r  is  the  ol)ji'ctio?i  to  friiil  in  (i  t»te  court,  lie  conceded  that 
the  Supreiru'  'Jonrt  of  New  York  has  ns  niiidi  iiuthority  to  try  oIIImuI- 
erH  ns  any  other  Court,  when  the  oflence  lias  heen  committed  within 
its  jurisdiction.  It  is  not  a  fpiestion  of  conflict  between  the  Courts 
of  the  state,  and  those  of  the  United  States;  for  he  denied  that  any 
Court,  under  either  (Government,  had  a  riij;ht  to  put  McLeod  on  his 
trial  ;  nnd  he  insisted  that  Connrross  had  no  power  to  confer  the  au- 
thority tc  try  him  on  the  Courts  of  the  Unit>n.  And  why  I  Simply 
because  the  constitution  of  the  United  States  clothes  the  Executive 
nnd  Legislative  departments  of  the  (rovcrnment,  with  the  exclusive 
jurisdiction  and  cognizance  of  the  entire  oU'encc.  The  prosecution  is 
without  precedent,  as  it  is  without  jurisdiction;  nnd  he  trusted  the 
Court  would  so  regard  it. 

Our  motfon  is  that  McLeod  be  discharged  without  a  trial ;  in 
what  way  is  indiflerent  to  us.  Wo  care  not  whether  by  the  entry 
of  a  nolle proacqui,  or  an  order  for  his  discharge  absolutely;  or  that 
he  be  let  to  bail  on  his  own  recognizance,  so  that  he  be  set  free,  and 
it  be  understood  that  no  trial  is  ever  to  be  had  ;  nnd  thus  the  country 
saved  from  the  disgrace  which  must  attach  to  it  if  the  prosecution  is 
pursued ;  for  we  feel  quite  as  much  interested  in  the  honor  of  our 
country  as  in  the  safety  of  McLeod. 

Before  proceeding  to  speak  farther  on  the  main  question  presented 
by  tlie  case,  the  counsel  said  it  would  be  proper  to  see  what  power 
the  Court  had  over  the  subject.  He  insisted  that  the  Supreme  Court 
had  jurisdiction  to  try  the  crime  of  murder  at  bar,  when  the  re- 
cord and  the  body  of  the  prisoner,  as  in  this  case,  are  both  brought 
into  court.  He  cited  2  Rev.  Stat.  2nd  Ed.  330  §1,  as  follows  :  "All 
issues  of  fact  which  shall  be  joined  in  the  Court  of  Chancery,  or  in 
any  surrogate's  court,  and  Avhich  shall  be  sent  to  the  Supreme  Court 
for  trial ;  and  all  issues  of  fact  joined  in  the  Supreme  Court,  shall  be 
tried  at  a  circuit  court  or  sittings  of  the  Supreme  Court,  in  the 
proper  county,  unless  the  Supreme  Court  shall,  on  the  motion  of 
either  party,  in  cases  of  great  difficulty,  or  which  require  great  ex- 
amination, order  such  trial  to  be  had  at  the  bar  of  said  Court." 

No  one  will  deny  that  this  is  a  case  of  such  description.  The 
Court  majr  therefore  grant  the  leave  mentioned  in  §  54-  of  R.  S.  609. 
"  It  shall  not  hereafter  be  lawful  for  any  district  attorney  to  enter  a  nolle 
prosequi.,  upon  any  indictment,  or  in  any  other  way  to  discontinue  or 
abandon  the  same,  without  the  leave  of  the  Court  having  jurisdiction 
TO  TRv  THE  OFFENCE  CHARGED,  entered  on  its  minutes."  The  right  to 
enter  such  nolle  prosequi,  previous  to  the  enactment  of  the  R.  Statutes, 
was  vested  in  the  District  Attorney  or  Attorney  General,  as  it  is  now  in 
Entrland,  and  in  most  of  the  States  of  the  Union,  and  in  the  U.  States. 


'f. 


v.. 


400 


GOULD  S   REPORTER. 


It  was  then  and  is  now  the  exercise  of  the  Executive  power  of  the  Gov- 
ernment, influenced  by  considerations  of  sound  policy  and  wise  ex- 
pediency. The  same  reasons  which  would  induce  the  law  officers 
of  the  Government  to  interpose  to  prevent  a  trial,  ought  to,  and  will, 
induce  this  Court  to  advise,  allow  and  order,  the  same  thing  to  be 
done.  This  is  emphatically  a  question  of  political  expediency,  in  the 
l.\ighest  and  best  sense  of  that  much  abused  term.  It  is  one  involv- 
ing the  dearest  and  most  cherished  rights  of  the  nation ;  and  all  the 
consequences  which  would  naturally  flow  from  its  decision,  may  very 
properly  be  taken  into  the  account. 

The  note  of  the  revisers  to  this  54-th  section  shows  where  the 
power  was  before  its  enactment,  and  that  it  might  now  be  legally 
exercised.  It  is  as  follows,  3  Rev.  Stat.  845 — "  It  is  conceived  that 
after  grand  juries  have  found  bills  on  their  oaths,  such  a  presumption 
of  guilt  arises,  that  the  prosecution  of  the  offence  should  not  rest  in 
the  discretion  of  any  officer  without  the  sanction  of  the  Court.  It 
may  be  abused  ;  and  there  can  be  no  difficulty  in  obtaining  the  leave 
of  the  Court  in  cases  where  it  should  be  granted.' 

Under  this  branch  of  the  law,  then,  this  Court  has  the  power  and 
the  right  to  do  what  in  its  discietion  shall  seem  to  be  proper. 

The  counsel  then  proceeded  to  examine  the  power  of  the  Court 
under  the  act  in  relation  to  writs  of  Habeas  Corpus,  when  issued  to 
inquire  into  the  cause  of  detention,  2  R.  S.  465.  He  insisted  that  the 
powers  of  the  Court  and  the  officers,  charged  with  the  duties  of  al- 
lowing this  important  writ,  are  by  these  enactments  greatly  extend- 
ed beyond  the  former  law  of  this  state,  or  present  law  of  England. 
They  authorise  the  court  to  look  beyond  the  indictment,  into  all  the 
facts  of  the  case,  and  to  dispose  of  the  party  "  as  the  justice  of  the 
case  may  require."  Without  examining  minutely  all  the  important 
provisions  of  this  law,  the  75th  section  of  which  abrogates  all  the 
provisions  of  the  common  law  in  regard  to  this  writ,  except  so  much 
and  such  parts  thereof  as  may  be  necessary  to  carry  into  full  effect 
the  provisions  therein  contained,  it  will  be  sufficient  for  the  present 
argument  to  quote  the  40th,  41st,  and  50th  sections. 

§  40.  "  The  Court  or  officer  befoic  whom  the  party  shall  be 
brought  on  such  writ  of  Habeas  Corpus,  shall  immediately  after  the 
return  thereof  proceed  to  examine  into  the  facts  contained  in  such 
return  and  into  the  cause  of  the  confinement  or  restraint  of  such 
party,  whether  the  same  shall  have  been  upon  commitment  for  any 
criminal  or  supposed  criminal  matter,  or  not." 

§  41.  "If  no  legal  cause  be  shown  for  such  imprisonment  or  re- 
straint, or  for  the  continuation  thereof,  such  Court  or  officer  shall  dis- 
charge such  party  from  custody  or  restraint  under  which  he  is  held." 

§  50.  "  The  party  brought  before  any  such  court  or  officer  on  the 
return  of  any  such  writ  of  Habeas  Corpus,  may  deny  any  of  the  mate- 
rial facts  set  forth  in  the  return,  or  allege  any  fact  to  show  either 
that  his  imprisonment  or  detention  is  unlawful,  or  that  he  is  entitled 
to  his  discharge ;  which  allegation  or  denial  shall  be  on  oath,  and 
thereupon  such  Court  or  officer  shall  proceed  in  a  summary  way,  to 
bear  such  allegations  and  proofs  as  may  be  produced  in  support  of 


I 


MCLEOD  3    TRIAL. 


401 


the  Gov- 
wise  ex- 

f  officers 
and  will, 
ng  to  be 
jy,  in  the 
le  involv- 
ed all  the 
may  very 

vhere  the 
e  legally 
lived  that 
sumption 
at  rest  in 
'ourt.  It 
the  leave 

ower  and 

er. 

the  Court 

issued  to 
d  that  the 
ties  of  al- 
ly extend- 

England. 
ito  all  the 
ce  of  the 

mportant 

;es  all  the 

so  much 

uU  effect 
present 

shall  be 
after  the 
in  such 
of  such 
for  any 

nt  or  re- 
shall  dis- 
is  held." 
er  on  the 
the  mate- 
iw  either 
s  entitled 
oath,  and 
Y  way,  to 
ipport  of 


such  imprisonment  or  detention,  or  against  the  same,  and  to  dispose 
of  such  party  as  the  justice  of  the  case  may  require." 

The  counsel  said  that  it  seemed  to  him  that  language  could  not  be 
employed  to  confer  broader  power,  and  more  enlarged  jurisdiction, 
than  are  here  given  to  the  Court.  So  solemn,  and  so  much  involvin<T 
the  whole  merits  of  the  cause,  was  this  proceeding  regarded  by  the 
Legislature,  that  by  the  70th  section  of  the  same  article,  a  writ  of 
error  is  given  to  either  party,  to  the  Court  for  the  Correction  of  Er- 
rors. And  the  Supreme  Court  of  the  United  States,  in  the  case  of 
Holmes  v.  Jennisoji,  11<  Peters''  Reports,  510,  decided  that  the  proceed- 
ing on  the  writ  of  Habeas  Corpus  is  a  suit  within  the  meaning  of  the 
2r)th  section  of  the  judiciary  act  of  Congress  :  so  that  in  the  speci- 
fied cases,  a  writ  of  error  will  lie  to  that  Court  from  the  judgment  of 
the  highest  Court  of  law  of  the  state.  The  counsel  appealed  to  the 
experience  of  their  honors,  to  say  whether  it  is  true,  as  he  asserted, 
that  it  was  the  constant  practice  of  the  Courts  of  General  Sessions 
and  Oyer  and  Terminer  to  exercise  their  discretion  in  proceeding  to 
the  trial  of  indictments.  A  party  is  indicted  separately  for  several 
felonies,  is  tried  and  convicted  on  one,  for  which  he  may  be  sen- 
tenced to  five  years'  imprisonment.  He  may  be  tried  on  each,  and 
on  conviction,  sentenced  to  imprisonment  for  a  term  of  years,  to 
commence  at  the  expiration  of  the  former  term.  It  is  a  well  known 
fact,  that  it  rarely  happens  that  more  than  one  trial  is  had. 

One  may  be  indicted  and  flee  from  justice,  and  after  an  absence 
for  years  return  within  the  jurisdiction  of  the  Court  with  a  redeemed 
reputation,  and  with  an  innocent  family.  Is  the  law  so  inexorable, 
that  our  law  officers  or  Courts  cannot,  without  a  violation  of  author- 
ity, omit  to  bring  him  to  trial  and  punishment,  and  his  family  to 
wretchedness  1 

A  prisoner  in  jail  is  sick  and  languishing,  so  that  his  longer  con- 
finement will  endanger  his  life.  Have  our  Courts  so  little  discretion 
or  humanity,  that  they  cannot  set  him  at  liberty  and  not  proceed  to 
the  trial  ] 

A.  man  is  indicted  and  imprisoned  for  murder.  Before  the  trial 
the  person  supposed  to  be  mutdered  returns  to  his  kindred  or 
home.  Will  it  be  affirmed  that  in  such  case  a  Court  or  an  officer 
cannot  discharge  the  prisoner  on  Habeas  Corpus  1  Must  the  law 
officer  of  the  Government  still  go  on  with  the  solemn  mockery 
of  a  trial  by  jury  1  Cannot  the  Court  be  informed  and  know  ;  cannot 
the  understanding  and  knowledge  of  the  community  pronounce  the 
verdict  without  the  form  of  a  trial  1 

Suppose  a  person  to  be  indicted  for  an  offence  made  felony  by 
statute,  but  before  the  trial  the  statute  is  repealed ;  and  suppose 
farther  that  that  repeal  was  done  by  a  course  of  enactment  which 
required  careful- legal  examination  and  construction  before  the  con- 
clusion is  arrived  at.  But  the  Court  so  determine  ;  must  it  still  put 
the  accused  on  his  trial  1  Who  will  say,  in  all  these  cases,  that  the 
Court  has  no  discretion,  but  must  try,  for  the  sake  of  having  an  ac- 
quittal by  a  jury  1 

It  seemed  to  the  counsel,  as  he  said,  that  the  argument  need  not 
be  farther  pursued,  to  prove  that  this  Court  has  power  to  dispose  of 

51 


I 


I 


402 


GOULD  8   REPORTER. 


this  indictment  and  of  the  prisoner  as  in  its  acknowledged  wisdom 
and  discretion  shall  seem  proper. 

Acting  under  this  belief,  and  it  is  hoped  with  a  proper  apprecia- 
tion of  the  duty  which  counsel  always  owe  to  their  client,  and  often 
to  thei;r  country,  these  writs  of  Certiorari  and  Habeas  Corpus  have  been 
prayed  for  and  issued,  and  the  record  and  the  prisoner  brought  into 
this  Court,  and  its  judgment  upon  the  whole  merits  of  the  great  and 
important  questions  involved,  is  now  invoked  ;  and  when  pronounced 
it  is  confidently  believed  it  will  not  only  open  the  prison  doors  and 
set  the  captive  free,  but  will  give  an  enlightened  interpretation  and 
application  of  the  laws  of  nations,  a  comprehensive  and  statesman- 
like view  of  the  jurisdiction  of  the  national  artd  state  governments, 
and  of  their  different  departments,  and  will  place  our  country  high 
in  the  view  of  all  nations. 

The  counsel  said  he  had  now  arrived  at  altogether  the  most  im- 
portant and  interesting  question  in  the  case — what  under  the  ex- 
ercise of  its  high  powers  this  Court  ought  to  do  in  this  matter. 

With  a  view  to  raise  and  present  the  most  interesting  question, 
the  accused,  the  indicted  Alexander  McLeod,  had  on  his  oath  set 
forth  iu  order  all  the  material  facts  in  the  case,  and  had  fully  forti- 
fied and  confirmed  them  all,  by  authentic  public  documents,  not  one 
of  which  material  facts  had  been  disputed,  much  less  disproved. 
They  are  all  before  the  Court  and  the  country,  and  need  not  here  be 
repeated. 

It  is  not  contended  that  they  show  a  state  of  war  to  exist  between 
the  United  States  and  Great  Britain,  or  the  state  of  New  York  and 
the  British  colonial  possessions  on  her  borders.  Happily  for  both 
nations  and  all  parties,  we  have  as  yet  escaped  this  fearful  crisis ; 
but  who  shall  say  how  long  we  may,  if  the  tribunals  of  justice  in  this 
state  shall  fail  to  respect  the  laws  of  nations,  or  to  have  a  wise  re- 
gard to  the  harmonious  movements  of  our  complex  system  of  govern- 
ment 1 

But  the  prisoner's  counsel  do  contend,  that  a  state  of  open  war 
did  exist  and  was  waged  on  the  Niagara  frontier  in  the  midst  of  the 
peace  of  nations.  A  war  too  by  American  citizens,  commanded  by 
an  American  citizen,  whose  name  and  title  were  well  calculated  to 
inspire  confidence  in  the  American  soldier,  and  to  excite  apprehen- 
sion in  every  Canadian  mind.  True,  in  their  combination  and  arma- 
ment they  had  violated  the  laws  of  their  own  country,  and  acted  in 
defiance  of  the  known  will  of  the  authorities  of  the  state  of  New 
Vork,  and  the  United  States  Government.  But  these  circumstances 
did  not  make  them  less  the  enemies  of  the  Canadian  Government, 
nor  deprive  those  public  functionaries,  charged  with  the  defence  of 
the  colonial  possessions  of  Great  Britain,  of  the  right  to  plan  and 
execute  every  expedition  necessary  for  public  security.  Whether 
necessary  or  not  they  are  the  judges  for  the  time  being,  subject  only 
to  the  appeal  of  nations.  It  belongs  not  to  an  humble  individual  to 
question,  defy,  or  disobey  their  mandate. 

Nor  is  the  question,  whether  the  expedition  against  the  steamboat 
Caroline,  which  resulted  in  the  violation  of  our  territory  in  time  of 
peace  with  the  Government,  in  the  destruction  of  the  boat,  and  in 


*y, 


f 


'I 


MCLEOD  S   TRIAL. 


+03 


(lorn 


WIS 


pprecia- 
id  often 
ive  been 
ght  into 
rent  and 
(lounced 
30TS  and 
lion  and 
itesman- 
rnments, 
itry  high 

most  im- 
•  the  ex- 
ter. 

question, 
oath  set 
illy  forti- 
;,  not  one 
lisproved. 
)t  here  be 

t  between 
York  and 
r  for  both 
ul  crisis; 
ice  in  this 
a  wise  re- 
)f  govern- 

open  war 
idst  of  the 
landed  by 
sulated  to 
apprehen- 
|and  arma- 
acted  in 
[e  of  New 
imstances 
•vernment, 
[efence  of 
plan  and 
Whether 
[bject  only 
lividual  to 

I  steatiiboat 
lin  time  of 
■at,  and  in 


(^ 


tlie  death  of  Amos  Durfee,  was  or  was  not  justiflable  or  excusable, 
involved  in  this  motion. 

As  counsel  for  McLcod,  we  are  not  before  the  court  to  justify, 
extenuate,  or  even  apologize,  for  this  most  extraordinary  and  rash 
proceeding  of  the  provincial  authorities ;  nor,  on  the  other  hand,  do 
we  feel  called  upon  to  approve  of  the  conduct  of  our  citizens  in  their 
lawless  and  hostile  invasion  of  a  British  island,  and  opening  a  can- 
nonade upon  British  subjects  in  time  of  peace. 

These  are  questions  to  be  agitated  and  settled  before  other  tribu- 
nals, and  in  a  far  diflerent  way.  Already  has  that  tribunal  taken 
cognizance,  and  now  has  constitutional  jurisdiction  of  the  whole  en- 
tire matter,  and  to  the  determincation  of  that  high  tribunal  it  is  both 
discreet  and  lawful  to  leave  the  issue. 

All  we  contend  is,  that  such  a  state  of  things  existed  on  the  Cana- 
dian frontier,  as  made  it  lawful  for  the  provincial  authorities  to  de- 
fend themselves  against  their  assailants  and  invaders ;  and  for  that 
purpose  to  command  the  obedience  of  every  British  subject  in  the 
province,  or  to  accept  the  voluntary  service  of  loyalty  ;  the  Govern- 
ment being  alone  responsible  for  whatever  was  done  ;  and  that  every 
subject  who  entered  the  service,  and  acted  under  such  authority, 
whether  for  a  month  or  an  hour,  incurred  no  personal  individual  re- 
sponsibility to  any  American  government  or  laws  whatever. 

So  beautifully  and  eloquently,  and  it  may  be  said  too,  so  satisfac- 
torily, have  the  facts  been  presented  to  the  court,  and  the  relative 
duties  and  obligations  of  governors  and  governed  been  illustrated  by 
the  opening  counsel,  that  there  is  but  little  left  on  this  part  of  the  case 
to  be  said  or  done,  save  to  cite  authorities  to  sustain  the  principles 
for  which  he  so  manfully  contended. 

First,  then,  as  to  the  duty  of  obedience.  Vattel,  book  l.ch.  1,  sec. 
12,  says,  "  From  the  very  design  that  induces  a  number  of  men  to  form 
a  society,  which  has  its  common  interests  and  which  is  to  act  in 
concert,  it  is  necessary  that  there  should  be  established  a  public  au- 
thority to  order  and  direct  what  is  to  be  done  by  each,  in  relation  to 
the  end  of  the  association.  This  political  authority  is  the  sovereign- 
ty, and  he  or  they  who  are  invested  with  it,  are  the  sovereign." 

"  It  is  evident  that  by  the  very  act  of  the  civil  or  political  associ- 
ation each  citizen  subjects  himself  to  the  authority  of  the  entire 
body,  in  every  thing  that  relates  to  the  common  welfare.  The  au- 
thority of  all  over  each  member,  therefore,  essentially  belongs  to  the 
body  politic  or  state  ;  but  the  exercise  of  that  authority  may  be  placed 
in  different  hands,  according  as  the  society  may  have  ordained." 

Again,  the  same  writer  says,  book  1,  ch.  4,  section  26,  "  We  have 
seen  already  that  every  political  society  must  necessarily  establish  a 
public  authority  to  regulate  their  common  affairs,  to  prescribe  to  each 
individual  the  conduct  he  »^ught  to  observe,  with  a  view  to  the  public 
welfare,  and  to  possess  the  means  of  procuring  obedience.  This  au- 
thority essentially  belongs  to  the  body  of  the  society,  but  it  may  be 
exercised  in  a  variety  of  ways,  and  every  society  has  a  right  to 
choose  that  mode  which  suits  it  best. 

At  book  1,  ch.  4,  sec.  38,  this  writer,  speaking  of  the  obligation 
and  rights  of  a  sovereign,  lays  down  the  same  great  principles. 


.1 
•  I 

i 


^ 


404, 


GOULDS   REPORTER. 


The  same  writer  at  book  1,  ch.  4,  sec.  40,  and  42,  says,  "  When 
therefore  the  people  confer  the  sovereignty  on  any  one  person,  they 
invest  him  with  their  understanding  and  will,  and  make  over  to  hiui 
their  obligation  and  rights,  so  far  as  relates  to  the  administration  of 
the  state,  and  to  the  exercise  of  public  authority." 

"  All  that  has  been  said  iii  chap.  2d,  of  the  general  duties  of  a  na- 
tion toward  itself,  particularly  regards  the  sovereign.  He  is  the  de- 
])ository  of  the  empire  and  of  the  power  of  commanding  whatever 
conduces  to  the  public  welfare.  He  ought,  therefore,  as  a  tender 
and  wise  father  and  faithful  administrator,  to  watch  for  the  nation, 
and  take  care  to  preserve  it  and  render  it  more  perfect,  to  better  its 
state,  and  secure  it  as  far  as  possible  against  every  thing  that  threat- 
ens its  safety  or  its  happiness." 

One  more  citation  from  this  author  on  the  subject  of  obedience 
will  suffice.  In  book  1,  ch.  4,  sec.  53,  he  says,  "  As  soon  as  a  nation 
lias  acknowledged  a  prince  for  its  lawful  sovereign,  all  the  citizens 
owe  liim  a  full  obedience.  He  can  neither  govern  the  state,  nor 
perform  what  the  nation  expects  of  him,  if  he  be  not  punctually 
obeyed.  Subjects,  then,  have  no  right  in  doubtful  cases,  to  examine 
the  wisdom  or  justice  of  their  sovereign's  command.  This  exami- 
nation belongs  to  the  prince.  His  subjects  ought  to  suppose  that 
all  his  orders  are  just  and  salutary.  He  alone  is  accountable  for 
the  evil  that  results  from  them. 

Second,  as  to  the  efTect  of  a  ratification  by  thd  sovereign  powers 
the  Attorney  General  inquires,  Can  it  protect  the  prisoner  1  Does 
it  show  him  innocent  1  We  answer,  the  facts  in  the  case  show 
McLeod  innocent  not  only  of  murder,  but  of  any  other  crime  or 
injury  whatever.  As  to  the  question  of  protection,  let  the  writers 
on  the  law  of  nations  answer. 

Vattel,  book  2d,  ch.  6,  sec.  73  and  74,  says,  "  As  it  is  impossible 
for  the  best  regulated  state,  or  for  the  most  absolute  sovereign,  to 
model  at  his  pleasure  all  the  actions  of  his  subjects,  and  confine 
them  on  all  occasions  to  the  most  exact  obedience,  it  would  be  un- 
just to  impute  to  the  nation  or  sovereign,  every  fault  committed  by 
the  citizens.  We  ought  not  then  to  say  in  general,  that  we  have  re- 
ceived an  injury  from  a  nation,  because  we  have  received  it  from 
one  of  its  members.  But  if  a  nation,  or  its  chief,  approves  or  rati- 
fies the  act  of  the  individual,  it  then  becomes  a  public  concern,  and 
the  injured  party  is  to  consider  the  nation  as  the  real  author  of  the 
injury,  of  which  the  citizen  was  only  the  instrument." 

Burlamaqui,  part  4,  ch.  3,  sec.  18  and  19,  "A  mere  presumption 
of  the  will  of  the  sovereign,  would  not  be  sufficient  to  excuse  a 
governor,  or  any  other  officer,  who  should  undertake  a  war,  except 
in  case  of  necessity,  without  either  a  general  or  particular  order." 

"  Whatever  part  the  sovereign  would  have  thought  proper  to  act 
if  he  had  been  consulted,  and  whatever  success  the  war  under- 
taken without  his  order  may  have  had,  it  is  left  to  the  sovereign 
whether  he  will  ratify  or  condemn  the  act  of  the  minister.  If  he 
ratifies  it,  this  approbation  renders  the  war  solemn,  by  reflecting  bacic 
as  it  were  an  authority  upon  it,  so  that  it  obliges  the  whole  common- 
wealth.   But  if  the  Sovereign  condemn  the  act  of  the  Governor,  the 


} 


Mcleod's  trial. 


405 


"  Wlien 
ion,  they 
iir  to  hiiTi 
ration  of 

I  of  a  na- 
is  the  de- 
whatever 
a  tender 
e  nation, 
better  its 
,at  threat- 
obedience 
is  a  nation 
»e  citizens 
state,  nor 
punctually 
o  examine 
his  exami- 
ppose  that 
intable  for 

gn  powers 
er  1  Does 
case  show 
•  crime  or 
:he  writers 

impossible 
vereign,  to 
ind  confine 
)uld  be  un- 
nmitted  by 
we  have  re- 
ed it  from 
ves  or  rati- 
ncern,  and 
lor  of  the 

resumption 
excuse  a 
I'ar,  except 
r  order." 
oper  to  act 
war  under- 
sovereign 
ter.  If  he 
ecting  bade 
e  common- 
)vernor,  the 


hostilities  committed  by  him  ought  to  pass  for  a  sort  of  robbery,  the 
lault  of  which  by  no  means  affects  the  state,  provided  the  Covernor" 
(not  the  private  citizen  who  obeyed)  "  is  delivered  up  or  punished 
accoiding  to  the  laws  of  the  country,  and  proper  satisfaction  be 
Miade  for  the  damage  sustained." 

In  this  case  not  only  is  Governor  Head's  general  conduct  ap- 
proved, but  his  original  authority  covers  the  whole  transaction,  and 
the  mode  of  its  execution  is  sanctioned  by  the  British  Govern- 
ment. 

But  the  learned  Attorney  General  says  all  these  are  questions  of 
fact,  to  be  passed  upon  by  the  jury.  A  new  doctrine  this,  certainly, 
that  we  need  a  jury  to  ascertain  whether  the  British  Minister  has 
spoken  ;  and  if  so,  whether  he  has  told  the  truth  ;  and  whether  the 
Court  can  properly  take  jurisdiction  of  the  matter.  The  Attorney 
General  farther  insists  that  the  Court  cannot  consider  any  facts 
aliunde^  except  what  go  to  the  illegality  of  the  commitment,  not 
to  the  guilt  or  innocence  of  the  accused,  and  that  an  innocent  man 
may  be  legally  detained  and  kept  for  trial.  We  do  not  claim  that 
I  he  Court  can  inquire  whether  McLeod  was  one  of  the  attacking 
party  or  not,  or  whether  that  party  killed  Durfee  ;  but  assuming 
these  facts  to  be  so,  we  say  the  Court  can  and  ought  to  inquire 
whether  any  portion  of  the  transaction  is  cognizable  before  the  state 
tribunals.  The  Cctfirt  will  see  that  it  has  jurisdiction  rightfully  to 
try  before  it  proceeds. 

The  case  of  the  ambassador,  put  by  the  Attorney  General,  fully 
illustrates  our  position.  He  alleges  that  he  is  an  ambassador,  and 
therefore  protected  by  the  law  of  nations.  We  allege  that  McLeod 
was  a  soldier  in  the  service  of  his  country,  and  therefore  protected 
by  the  same  law.  Each  goes  to  the  jurisdiction  of  the  Court,  and 
may  therefore  be  inquired  of  here. 

The  supposed  cases  of  killing  in  self-defence,  in  the  execution  of 
the  law,  in  the  service  of  process,  in  keeping  the  peace,  or  in  carry- 
ing into  execution  the  sentence  of  the  law  at  a  different  time  and 
place*  from  that  appointed,  have  no  analogy.  They  are  the  ordinary 
cases  arising  under  our  laws  in  relation  to  our  own  citizens  in  time 
of  peace,  and  have  no  relation  to  the  rights  of  war,  to  the  laws  of 
nations,  to  the  pi'ovisions  of  our  constitution,  or  to  the  jurisdiction 
of  our  Courts  rightfully  to  take  cognizance  of  the  questions  thus  aris- 
ing. If  possible,  there  is  still  less  analogy  between  the  evidence 
furnished  by  the  certificate  of  a  Governor,  and  by  the  diplomacy  be- 
tween two  independent  nations. 

Again  :  it  is  said  there  was  an  excess  of  force  used  ;  that  the  order 
to  take  and  destroy  the  steamboat  did  not  warrant  the  killing  of 
Durfee.  Do  the  counsel  mean  to  insist  on  applying  the  technical 
doctrine  of  the  action  of  assault  and  battery  to  the  movements  of 
armies  in  time  of  war  1  That  to  a  plea  of  son  assault  demesne, 
they  may  reply  an  excessive  beating  1  The  wonder  is  rather  that 
but  one  life  was  lost  in  the  midnight  execution  of  a  perilous  expedi- 
tion. It  cannot  be  denied  that  the  assailants  had  reason  to  expect 
resistance  from  a  band  of  armed  men  on  board  the  boat.  It  is  rea- 
sonable to  suppose  that  the  discharge  of  fire-arms  was  expected  and 


406 


GOULD  8    REPORTEB. 


intended  both  by  those  who  ordered  and  those  who  obeyed,  else  wliy 
were  they  supplied  1 

The  validity  of  an  order  given  by  a  government  cannot  be  ques- 
tioned or  subjected  to  a  trial  by  jury.  What  ihe  order  was,  is  ad- 
mitted ;  that  it  was  obeyed  is  admitted  ;  the  cause  of  its  issue,  its  na- 
ture and  object,  are  admitted.  That  Durfee  was  killed  in  its  execu- 
tion is  admitted  ;  and  that  this  is  the  only  murder  or  killing  set  forth 
in  the  indictment  is  also  admitted.  There  is  not  a  single  fact  dis- 
puted, and  not  a  material  one  that  does  not  fully  appear  on  this  mo- 
tion. Then  why  call  for  the  intervention  of  a  jury!  It  is  the  sole 
province  of  this  Court  to  pronounce  the  law  on  facts  admitted  and 
known — and  when  this  Court  perceives  that  there  was  no  felonious 
killing,  but  that  the  municipal  authorities  of  the  state  cannot  take 
lawful  jurisdiction  of  any  portion  of  the  transaction,  has  it  not  power 
to  stay  proceedings  and  discharge  the  prisoner  1 

The  Attorney  General  has  reiterated  the  hateful  word  "  murder" 
so  often  in  his  argument,  that  one  is  almost  led  to  believe  he  ex- 
pected by  its  utterance  to  stamp  its  nature  upon  this  transaction. 
This  Court  will  not  be  influenced  by  sounds,  but  by  ideas  and  argu- 
ments alone. 

It  is  insisted  that,  whether  ordered  or  not,  McLeod  having  been 
afterward  found  within  our  state  jurisdiction,  he  is  individually 
answerable.  This,  in  the  judgment  of  the  prisoner's  counsel,  is  a 
great  and  dangerous  heresy. 

But  let  us  again  recur  to  the  authorities.  Rutherford,  book  2d, 
ch.  9,  sec.  18,  says,  "  In  solemn  war  the  individual  members  of  a  na- 
tion which  has  declared  war,  are  not  punishable  by  the  adverse  na- 
tion for  what  they  do ;  because  the  guilt  of  their  actions  is  charge- 
able to  the  nation  which  directs  and  authorizes  the  act.  But  even 
this  effect  may  be  produced  without  a  declaration  of  war.  For  in 
the  less  solemn  kinds  of  war,  what  the  members  do,  who  act  under 
a  particular  direction  and  authority  of  the  nation,  is  by  the  law  of 
nations  no  personal  crime.  They  cannot,  therefore,  be  punished  con- 
sistently with  this  law  for  any  act  in  which  it  considered  them  only 
as  the  instruments,  and  the  nation  as  the  agent." 

Vattel,  book  3d,  ch.  2d,  sec.  6,  says,  "  The  sovereign  is  the  real 
author  of  war,  which  is  carried  on  in  his  name  and  by  his  order. 
The  troops,  officers  and  soldiers,  and  in  general,  all  those  by  whose 
agency  the  sovereign  makes  war,  are  only  instruments  in  his  hands. 
They  execute  his  will,  and  not  their  own." 

Where  then  is  the  malice,  so  essential  to  constitute  murder  1 
Where  the  wicked  and  felonious  design,  if  he  is  not  acting  his  own 
will,  but  that  of  another,  which  he  has  no  "•'.  ch*  to  question  or  resist  ? 

Id. — §  7.  "As  war  cannot  be  carried  o.i  v.ithout  soldiers,  it  is  evi- 
dent that  whoever  has  the  right  of  making  war,  must  also  naturally 
have  that  of  raising  troops." 

It  has  been  farther  said,  by  the  Attorney  General,  that  McLeod  is  a 
civilian — a  deputy  sherifT — not  a  soldier,  and  is  a  volunteer,  and 
therefore  not  exempt  from  personal  liability. 

Let  us  again  have  recourse  to  authority,  whether  there  is  any  war- 
rant for  this  doctrine. 


,  else  why 

be  ques- 
as,  is  ad- 
sue,  its  iia- 
its  execu- 
r  set  fortli 
i  fact  dis- 
11  this  mo- 
s  the  sole 
Tiitted  and 
)  felonious 
LDDOt  take 

not  power 

"  murder" 

!ve  he  ex- 

ransaction. 

and  argu- 

iving  been 
idividually 
unsel,  is  a 

[,  book  2d, 
;rs  of  a  na- 
idverse  na- 
is  charge- 
But  even 
Hr.     For  in 
act  under 
the  law  of 
lished  con- 
thetn  only 

is  the  real 
his  order. 

;  by  whose 
his  hands. 

;  murder  1 

\g  his  own 

or  resist  ? 

:s,  it  is  evi- 

naturally 

cLeod  is  a 
mteer,  and 

is  any  war- 


I 


MCLEOD  8   TRIAL. 


4.07 


V'attel,  book  3d,  chapter  2d,  sections  8  and  9,  says:  "Every  citi- 
zen is  bound  to  serve  and  defend  his  state  as  far  as  he  is  cnpablc. 
Society  cannot  otherwise  be  maintained,  and  this  concurrence  for  the 
common  defence  is  one  of  the  principal  obje(;tsof  cveiy  political  as- 
sociation. Every  man  capable  of  carrying  arms  should  take  them 
up  at  the  fust  order  of  him  who  has  the  power  of  making  war. 

"  Every  citizen  or  subject  is  bound  to  serve  the  state.  The  sove- 
reign has  the  right,  in  case  of  necet<sity,  to  enlist  whom  he  pleases. 
And  it  is  highly  proper  that  he  should,  as  far  as  possible,  conline  hit; 
choice  to  volunteers,  who  enlist  without  compulsion." 

Who  composed  the  army  of  the  Revolution  !  Who  the  militia  of 
that  day  1  Who  the  minute-men  1  Were,  they  not  all  volunteers, 
ofl'ering  themselves  a  willing  sacrifice  on  the  altar  of  freedom  ?  Our 
enemy  indeed  called  them  "  rebels,"  but  that  did  not  make  them  so. 
The  history  of  their  "  deeds  of  noble  daring"  is  "  written  in  letters 
of  living  light,"  and  the  judgment  of  Christendom  upon  their  charac- 
ter has  long  since  been  recorded. 

Far  distant  be  the  day  when  any  other  than  "  volunteers"  shall 
serve  in  the  armies  and  navies  of  this  country,  or  when  they  shall 
be  denied  the  rights  and  immunities  of  war — or  when  these  shall  by 
us  be  denied  to  others. 

But  again,  it  has  been  said  by  the  Attorney  General,  that  there 
was  no  war ;  that  none  was  declared  ;  that  the  party  who  came  over 
and  destroyed  the  Caroline  were  a  pack  of  marauders  and  murderers. 
It  is  true  that  no  war  had.  been  declared  between  the  United  States 
and  Great  Britain ;  but  it  is  equally  true  that  there  had  been  a  very 
significant  declaration  of  war  by  those  who  took  hostile  possession 
of  Navy  Island,  and  cannonaded  the  Canadian  main ;  and  that  the 
steamboat  destroyed  and  the  man  killed,  had  been  engaged  in  trans- 
porting "  volunteers"  and  munitions  of  war  to  the  island  for  the  pur- 
pose of  destroying  the  inhabitants  of  Canada,  and  subverting  their 
government. 

Vattel,  book  3,  chap.  4.  sec.  67,  says,  "  Legitimate  and  formal  war- 
fare must  be  carefully  distinguished  from  those  illegitimate  and  in- 
formal wars,  or  rather  predatory  expeditions,  undertaken  either  with- 
out lawful  authority,  or  without  apparent  cause,  as  likewise  without 
the  usual  formalities,  and  solely  with  a  view  to  plunder." 

"  Armies  of  banditti  who  range  about  for  plunder,  cruises  of  the 
buccaneer  without  commission  in  time  of  peace,  and  such  in  general 
are  the  depredations  of  pirates." 

"  These  two  species  of  war,  I  say,  the  lawful  and  illegitimate,  arc 
to  be  carefully  distinguished,  as  the  effects  and  the  rights  arising 
from  each  are  very  different." 

It  is  not  difficult  to  tell  to  which  class  of  war  the  defence  of  Can- 
ada, against  an  open,  hostile  invasion,  belonged.  Nor  can  it  be  said 
with  any  show  of  truth,  or  candor,  that  there  was  no*  "  apparent 
cause"  for  the  destruction  of  the  Caroline.  That  there  was  a  suffi- 
cient one  to  justify  the  entry  upon  our  territory,  at  the  time  and  in 
the  manner  that  it  was  done,  will  not  be  contended  for  or  admitted. 

It  now  seems  to  the  counsel  for  the  prisoner  that  it  has  been 
shown  by  acknowledged  authority  that  the  laws  of  war,  and  of  na- 


+08 


Gould's  reporter. 


lions,  must  govern  this  case;  and  hence  we  say  that  no  nation,  or 
people,  having  a  proper  respect  for  its  own  honor  and  dignity,  wonhl 
ev(!r  put  McLeod  on  his  trial.  Would  the  Courts  on  the  frontier  in- 
dict a  whole  army  of  ^nvadersl  Then  let  them  find  hills  against 
Captain  Drew  and  his  entire  party  who  made  the  attack.  Nay,  more, 
why  not  find  bills  against  Col.  McNab  and  Gov.  Head  I  They  must 
both  be  accessory  before  the  fact ;  and  then  let  the  Governor  make 
11  requisition  for  their  surrender,  as  well  as  for  that  of  Mitchell.  The 
attempt  to  bring  these  gentlemen  to  trial  for  this  ofTence  would  savor 
more  of  justice  and  courage  than  does  the  prosecution  of  an  obscure 
individual,  who  obeyed  their  order. 

In  truth,  this  whole  praceeding  is  an  absurdity ;  its  equal  cannot 
be  found,  and  for  the  honor  of  our  nation  it  is  to  be  hoped  it  will  re- 
main for  ever  alone — a  precedent  without  a  follower. 

It  is  the  offspring  of  the  excited  state  of  feeling  along  the  frontier, 
where  are  to  be  found  refugees  from  Canada,  and  some  of  our  own 
citizens  of  desperate  fortunes,  and  not  very  sound  principles,  who 
are  anxious  that  McLeod  should  be  tried,  convicted,  and  executed, 
that  a  war  between  the  two  governments  may  be  hurried  on  in  the 
expectation  that  they  might  share  the  plunder. 

The  Attorney  General  admits  that  there  is  excitement  on  the  bor- 
ders, and  he  informs  us  that  there  will  be  again,  if  this  trial  of  Mc- 
Leod is  not  allowed  to  proceed.  Let  it  be  so,  if  it  must.  But  it  will 
furnish  no  reason  with  this  Court  for  turning  aside  the  law,  or  disre- 
garding the  established  usages  of  nations,  whatever  effect  it  has  had 
in  other  places,  or  before  other  tribunals,  or  officers. 

This  Court  does  not  know  what  appeared  before  the  grand  jury, 
nor  whether  they  were  'patriots'  or  'sympathisers'  or  'calm,  unpre- 
*  judiced  men  ;'  nor  is  it  necessary  it  should.  It  is  enough  to  know 
what  appears  before  the  Court,  and  that  it  is  now  shown  that  there 
was  no  individual  offence,  no  cause  for  the  indictment,  and  none  for 
its  farther  prosecution.  This  is  not  established  alone  by  the  late 
avowal  of  the  British  Government,  but  also  by  the  indisputable  alle- 
gations of  the  prisoner,  and  by  all  the  public  documents  before  the 
Court. 

Allusion  has  been  made  to  the  conduct  of  General  Jackson,  in  the 
trial  and  execution  of  Arbuthnot  and  Ambrister,  taken  in  Florida. 
What  has  this  to  do  with  the  case  at  bar  1  Where  is  the  analogy  \ 
Moreover,  that  transaction  has  not  yet  become  authoritative  in  the  code 
of  nations.  The  counsel  for  the  people  have  said  that  the  Canadian 
authorities  tried  and  condemned  our  citizens  who  entered  their  ter- 
ritory, executing  some  and  transporting  many  others  ;  and  that  our 
Government  had  not  complained.  True  ;  but  are  the  cases  parallel  \ 
These  citizens  acted  by  no  lawful  command,  but  in  open  violation  of 
the  laws  of  their  own  country  and  the  country  they  invaded. 

Allusion  has  been  also  made  to  the  case  of  John  Baker,  who  was 
tried  in  the  courts  of  New  Brunswick  for  raising  the  American  stan- 
dard in  the  Madawaska  district  on  the  4th  of  July,  and  of  Ebenezer 
S.  Greeley,  who  was  in  like  manner  tried  for  taking  a  census  of  the 
inhabitants  thereof,  under  the  laws  of  the  state  of  Maine,  to  show 
that  the  British  Provincial  Government  try  our  citizens  without  scru- 


■t 


Mcleod's  trial. 


4U0 


ation,  or 
y,  would 
ntier  in- 
against 
y,  more, 
ley  must 
or  make 
ell.  The 
uld  savor 
I  obscure 

I  cannot 
t  will  re- 
frontier, 
our  own 
pies,  who 
jxecuted, 
)n  in  the 

1  the  bor- 
al  of  Mc- 
3ut  it  will 
or  disre- 
it  has  had 

and  jury, 

m,  unpre- 

to  know 

lat  there 

none  for 

the  late 

able  alle- 

lefore  the 

Dn,  in  the 
Florida, 
inalogy  1 
the  code 
Canadian 
their  ter- 
that  our 
parallel  1 
lation  of 

who  was 
can  stan- 

Ibenezer 
IS  of  the 

to  show 
lout  scru- 


ple, and  punish  without  mercy ;  and  that  the  Government  at  home 
wave  these  proceedings  its  sanction.  No  enlightened  mind  will  say 
that  these  trials  have  done  the  provincial  or  British  Government  any 
honor.  Before  they  will  be  acknowledged  as  authority,  or  as  safe 
precedent,  they  must  be  shown  to  be  right,  and  that  the  case  at  bar 
is  like  them.  In  truth  there  is  no  analogy.  In  these  cases,  Baker 
and  Greeley,  having  American  hearts  and  feelings,  with  a  knowledge 
of  the  disputed  territory  and  theconflict  of  the  laws,  voluntarily  vio- 
lated those  of  New  Brunswick,  passed  to  maintain  her  assumed  juris- 
diction, and  intended  to  operate  on  just  such  cases. 

It  has  been  said  also,  that  General  Washington,  in  the  time  of  the 
revolution,  ordered  the  men,  sent  by  Sir  Henry  Clinton  to  corrupt 
the  soldiers  of  the  Pennsylvania  line,  to  be  hung.  So  too,  and  for 
the  same  offence,  waa  Major  Andre  ordered  to  be  hung  by  the  same 
illustrious  general,  in  obedience  to  the  same  stern  mandate  of  the 
same  code,  the  law  of  war.  No  civil  tribunal,  however,  ever  attempt- 
ed to  take  cognizance  of  these  offences. 

But  we  contend  that  those  laws  which  relate  to  spies,  to  emissa- 
ries, to  robbers,  to  bandits,  to  assassins,  to  murderers,  have  no  ap- 
plication to  this  case  of  McLcod — who,  when  his  country  was  invad- 
ed, stood  forth  in  her  defence,  and  obeyed  her  orders.  He  took 
the  hazards  of  war  and  periled  his  life  in  the  expedition,  but  for  the 
rightfulness  of  the  order  his  country  alone  is  responsible. 

The  Attorney  General,  in  his  extensive  research,  cited  the  trial  of 
the  unfortunate  Mary,  Queen  of  Scots,  the  bloodiest  act  of  treachery 
and  tyranny  and  the  foulest  judicial  murder  ever  recorded,  to  show 
that  though  a  sovereign,  she  might  be  tried  in  England  for  an  alleg- 
ed offence  against  its  laws.  He  too  might  have  cited  the  trial  of 
Charles  I.,  as  a  precedent  equally  in  point,  for  both  objected  to  the 
right  and  jurisdiction  of  the  respective  high  commissioners,  to  try 
them  ;  and  both  received  the  same  answer  and  the  same  predeter- 
mined destiny.  The  bloody  records  of  the  doings  of  the  infamous 
Scroggs  and  Jeffreys  would  also  furnish  precedents  to  sanction  any 
act  of  oppression,  and  would  be  entitled  to  as  much  respect  as  is  the 
trial  of  the  Scottish  Queen.  Why  did  he  not  cite  another  case,  to  be 
found  in  those  bloody  State  Trials,  where  a  nobleman  was  arrested 
in  the  morning  on  a  charge  of  treason  ;  was  denied  a  postponement  of 
the  trial  till  the  next  day,  to  give  him  time  to  prepare  for  his  defence  ; 
and  when  he  asked  indulgence  till  the  afternoon,  was  told  it  could 
not  be  granted,  "  because  in  these  cases  a  speedy  trial  is  necessary 
to  secure  a  conviction." 

The  Attorney  General  seems  to  suppose  that  we  ask  the  exercise 
of  the  pardoning  power.  Not  so,  that  pre-supposes  guilt.  We  ask 
the  prisoner's  discharge  because  there  is  no  guilt,  no  individual  res- 
ponsibility, and  because  the  judicial  tribunals  have  no  jurisdiction  of 
any  part  of  the  transaction.     It  is  a  national  concern. 

In  1  Knapp's  Rep.  316,  of  cases  on  appeal  to  the  King  in  council, 
of  England,  a  case  more  in  point  will  be  found. 

Elphinstone,  one  of  the  defendants,  was  a  high  commissioner,  j 
acting  under  the  Gov.  General  of  the  East  India  possessions,  and  gave 
the  order  which  Bobertson,  the  other  defendant,  a  British  Colonel, 

52 


no 


GOULD  S  REPORTER. 


executed,  to  seize  upon  the  treasures  of  Narroba  Antia,  a  nobleman 
of  high  rank  under  the  Mahruttn  Government.  This  was  done  on 
the  17th  July,  1H17.  An  action  of  trover  was  broupht  by  the  repre- 
sentatives of  the  nobleman  in  the  Supreme  Court  of  Bombay  ;  and  on 
the  ()th  of  February.  1H27,  an  award  was  recovered  against  these  of- 
ficers for  1,74'5,920  rupees  damages,  and  1(5,303  rupees  costs.*  From 
this  award  an  appeal  was  brought  to  the  King  of  England  in  council. 
The  cause  was  argued  at  great  Icngtli  by  Sugden,  Solicitor  General, 
and  Wightman  for  the  appellants,  and  VVilliams  and  Dcnman  for  the 
respondents.  The  whole  cause  turned  on  the  question  of  fact, 
whether  there  was  such  a  state  of  war  or  disturbance,  as  to  make  the 
seizure  colorable  for  that  reason. 

Lord  Tenterden  delivered  the  opinion  of  the  council  as  follows  : 
"■  We  think  the  proper  character  of  the  transaction  was  that  of 
hostile  seizure,  made  if  not  flagrante,  yet  nondum  cessante  bello :  re- 
gard being  had  both  to  the  time,  the  place,  and  the  person  ;  and  con- 
sequently that  the  municipal  Court  had  no  jurisdiction  to  adjudge 
upon  the  subject :  but  that  if  any  thing  wa^  done  amiss,  recourse 
could  only  be  had  to  the  government  for  rcdfr;ss.  We  shall  there- 
fore recommend  it  to  his  Majesty  to  reverse  tne  judgment." 

Here,  then,  is  a  case  where  the  officer  who  gave  the  command, 
and  the  soldier  who  obeyed,  were  prosecuted  civilly,  not  criminally, 
for  an  act  done  in  the  nature  of  war,  and  the  judgment  of  an  enlight- 
ened tribunal  of  statesmen  and  jurists  declares,  "  that  the  municipal 
courts  had  no  jurisdiction  to  adjudge  upon  the  matter,"  and  that  the 
Government  alone  was  answerable  for  any  thing  that  was  done  amiss. 
So  we  say  in  the  case  at  the  b>'«r.  Capt.  Drew  and  his  party  who 
made  the  attack  on  the  Caroline  are  not  responsible  ;  nor  is  Gov. 
Head,  who  gave  orders  to  Col.  McNab ;  nor  is  Col.  McNab,  who  di- 
rected the  expedition — but  the  British  Government  alone,  from  whom 
reparation  has  been  demanded  by  the  United  States  Government,  the 
injured  party.  The  case  cited  proves  that  the  municipal  courts  of 
this  state  have  no  "jurisdiction  to  adjudge  upon  the  matter" — that 
this  whole  proceeding  is  a  usurpation  of  authority  which  belongs 
alone  to  the  Federal  Government,  but  not  to  its  judicial  tribunals.  If 
the  courts  of  this  state  have  no  authority  or  jurisdiction  to  indict  and 
try  McLeod,  then  clearly  they  have  none  to  detain  or  imprison  him. 
There  is  no  fact  to  warrant  the  assertion  of  the  Attorney  General  that 
McLeod  pursued  and  wantonly  and  inhumanly  shot  Durfee,  on  our 
own  territory,  as  he  was  flying  from  the  boat.  That  he  was  some 
thirty  or  forty  feet  from  the  water's  edge  when  he  fell,  does  appear ; 
but  that  a  projectile  from  a  gun  fired  from  the  small  boats,  or  the 
deck  of  the  steamboat,  might  have  overtaken  and  killed  him,  without 
his  being  pursued  or  seen  amid  the  surrounding  darkness,  every  body 
knows.  McLeod  has  on  oath  alleged  the  facts,  which  are  fully  con- 
firmed by  all  the  documents  and  now  undisputed,  and  which  can 
never  be  denied  or  disproved,  that  show  his  imprisonment  or  deten- 
tion to  be  unlawful,  and  that  he  is  entitled  to  his  discharge.  He 
therefore  asks  this  Court  to  dispose  of  him  "  as  the  justice,  of  the 

*  A  rupee  ia  equal  to  49  and  eight.tentha  oenta. 


a 

V 

tl 


0 


■M.7 


iblemau 
lono  on 
B  repre- 
and  on 
hese  of- 
*  From 
council, 
jreneral, 
I  for  the 
of  fact, 
tiake  the 

Hows : 

that  of 
'llo :   re- 
and  con- 
adjudge 
recourse 

all  there- 

» 

ommand, 
•immally, 
1  enlight- 
Tiunicipal 
d  that  the 
me  amiss, 
tarty  who 
|r  is  Gov. 
,  who  di- 
im  whom 
ment,  the 
Icourts  of 
r"— that 
belongs 
nals.     If 
indict  and 
ison  him. 
eral that 
le,  on  our 
Lvas  some 
|s  appear ; 
,  or  the 
without 
rery  body 
Fully  con- 
Ihich  can 
lor  deten- 
rge.    He 
te  of  the 


MCLEOO's   TRIAL. 


441 


case  requires,"  in  pursuance  of  the  full  authority  given  to  it  u>jr  our 
statute. 

The  question  now  is,  not  whether  McLeod  has  or  has  not  commit- 
ted n  iioiriicide,  but  is  he  in  law  a  iniirdcrer  1  This((iiestion1lie  code 
of  nations  must  answer.  This  Court  is  now  sittiiij;  in  judgment  be- 
tween nations.  They  are  indeed  illustrious  nations,  but  the  fo- 
rum is  worthy  of  the  cause  and  the  parties — and  in  this  august 
trial  is  presented  the  singular  anomaly,  that  all  parties  are  equally 
interested  in  the  rendition  of  the  same  judgment.  On  it  nmy  be  sus- 
pended the  question  of  peace  or  war.  Tlie  preservation  of  peace  is 
alike  dear  to  both  nations,  and  both  were  struggling  therefor  when 
this  deeply  to  be  lamented  interposition  of  tlie  municipal  authorities 
of  the  state  occurred,  which  threatens  open  rupture.  Is  it  reasonable 
to  suppose  that  the  British  nation  will  continue  its  friendly  negotia- 
tion, with  a  halter  about  the  neck  of  one  of  its  subjects  for  obeying  its 
orders  ]  or  that  after  its  public  avowal  by  its  minister,  of  the  act  com- 
plained of,  and  of  its  readiness  to  answer,  it  would  submit  to  the  indig- 
nity of  having  McLeod  sent  back  for  trial  as  a  murderer  1  It  seems 
to  us  not.  • 

We  arc  now  prepared  to  enter  upon  the  discussion  of  another  im- 
portant and  interesting  branch  of  the  case  ;  one  which  more  imme- 
diately concerns  the  institutions  of  our  own  country,  their  appropriate 
spheres  of  action,  and  their  harmonious  movements.  The  United 
States  Government  is  clotiied  with  the  exclusive  power  and  duty  of 
taking  care  of  all  our  foreign  relations.  Our  state  government  has 
in  charge  most  of  our  internal  and  domestic  aflairs  ;  each,  keeping 
within  its  legitimate  bounds,  will  avoid  jars  and  collisions  with  the 
other.  Under  the  constitutional  exercise  of  the  treaty-making  power, 
redress  for  this  public  and  hostile  invasion  of  the  territory  of  the 
United  States,  the  destruction  of  the  steamboat  and  the  killing  of 
our  citizen,  was  at  an  early  day  demanded  of  the  British  Government, 
by  the  Government  of  the  United  States ;  and  the  whole  matter  is 
still  in  course  of  treaty  between  them,  with  a  view  to  a  full  and  just 
settlement.  The  state  of  New  York,  therefore,  cannot  discreetly  or 
lawfully  interpose  its  municipal  jurisdiction,  and  take  cognizance  of 
any  part  of  this  public  offence  against  the  entire  American  nation. 
It  is  the  exercise  of  an  authority  by  the  state,  repugnant  to  the  con- 
stitution and  laws  of  the  United  States,  and  brings  the  jurisdictions  in 
collision  and  conflict.  Its  tendency  is  to  thwart  the  constitutional 
exercise  of  the  treaty-making  power  of  the  Federal  Government,  and 
thus  involve  the  two  nations  in  war.  This  power  is  vested  exclu- 
sively in  the  U.  States  ;  Constitution  U.  S.  art.  2d,  sec.  2d.  "  The 
President  shall  have  power  by  and  with  the  advice  and  consent  of 
the  Senate,  to  make  treaties,  provided  two-thirds  of  the  Senators 
present  concur." 

Art.  1,  sec.  10.  "  No  state  shall  enter  into  any  treaty,  alliance  or 
confederation,  or  grant  letters  of  marque  and  reprisal." 

The  invasion  of  our  territory,  the  destruction  of  the  steamboat, 
and  the  killing  of  Durfee,  were  one  entire  transaction.  The  whole 
was  one  oflence  against  the  United  States.  No  one  will  contend 
that  the  state  of  New  York  could  demand  reparation  of  the  British 


n. 


112 


•lOULD  8    REPORTER. 


and  comnriented 

(jibbuiiH  vs.  Og« 

1!)9  ;    1  Cranch, 

1;  4  id.  209;   11 


government  for  any  portion  of  thin  injury  j  nor  dony  that  the  United 
States  govcrnniont  miiy,  and  hutt  properly  made  the  demand  of  re- 
dreHH,  n<|l  only  for  the  violatiun  of  our  territory,  but  for  tlie  destruc- 
tion of  property  and  life. 

The  Government,  therefore,  ha8  taken  Jurisdiction  of  the  entire 
itvitter,  and  that  must  be  cxchisive ;  for  two  ecparute  independent 
juriHdictionH  cannot  lawfully  act  at  the  same  tune  upon  the  Hume 
Hubject. 

In  support  of  these  prniciples  the  counsel  cited 
npon  the  following  anlliorities :  9  Wheat.  Hep.  1, 
den  ;  2  I'eter's  Rep.  24-5  :  H  Crunch,  109  ;  .'}  Dallas. 
103 ;  2  Dallas,  304 ;  4  id.  U  ;  4  Wheat.  122  ;  5  id. 
Wend.  Rep.  311. 

As  the  Government  has  the  right  to  demand,  so  it  has  a  right  to 
accept  redress,  and  then  to  acknowledge  itself  saiislied.  Suppose  it 
had  already  entered  into  a  treaty  with  Great  Britain,  by  which  that 
<  fovernment  had  acknowledged  its  wrong  in  the  whole  afTair,  had 
stipulated  to  pay  the  value  of  the  property  destroyed,  and  to  provide 
for  the  surviving  family  or  relatives  of  Durfee,  and  our  Government 
had  acknowledged  itself  satisfied.  Will  any  one  contend  that  a  civil 
suit  could  still  be  maintaiued  by  the  owner  of  the  boat  against  the 
attacking  party  ?  or  that  acrimiiuil  proceeding  for  murder  could  still 
be  had  against  any  of  those  engaged  in  the  afTair  1  Surely  not. 
That  which  is  equivalent  to  all  these  proceedings  has  already  been 
instituted,  and  is  now  depending  in  the  high  court  of  nations. 

The  complaint  is  made— the  summons  has  gone  forth — the  party 
has  appeared  and  answered,  and  the  trial  is  now  going  on ;  and  no 
American  should  entertain  a  doubt  that  the  issue  will  be  just  and 
honorable  to  all  concerned.  In  a  suit  brought  before  your  honors, 
in  this  highest  court  of  original  jurisdiction,  it  is  enough  to  arrest 
all  proceedings,  to  show  that  a  suit  for  the  same  subject  matter  was 
before  brought,  and  is  still  depending  in  the  most  petty  tribunal  in 
the  state.  Shall  not  the  same  rule  obtain  here  1  Can  an  inferior 
Court  oust  this  of  its  jurisdiction;  and  shall  the  same  power  be 
denied  to  the  high  court  of  nations,  by  this  tribunal  now  sitting  in 
judgment  upon  the  affairs  of  nations  1  This  Court  cannot  fail  to  per- 
ceive, that  the  finding  of  this  indictment,  the  arrest  and  imprison- 
ment of  McLeod,  directly  conflict  with  the  exercise  of  this  high 
power  by  the  United  States  Government.  Is  it  too  much  to  say,  that 
they  have  probably  already  arrested  the  negotiation — the  peaceable 
mode  of  trial  between  nations,  and  that  it  cannot  again  be  resumed 
until  this  difficulty  is  removed  ?  That  the  denial  of  this  motion,  and 
the  bringing  McLeod  to  trial,  will  most  certainly  involve  our  coun- 
try in  war  1 

But  it  is  said  the  laws  of  the  state  of  New  York  have  been  violated, 
and  that  her  honor  and  dignity  must  be  vindicated.  No  other  than 
the  law  of  nations  has  been  violated,  and  according  to  that  code  must 
satisfaction  be  sought  and  obtained.  The  honor  and  dignity  of  the 
state  cannot  be  promoted  by  a  disregard  of  those  laws,  or  of  her  own 
duties  toward  the  Federal  Government.  Of  all  the  states  in  the 
Union,  New  York,  because  of  her  position,  power  and  dignity,  should 


MCI.EOD  A   TRIAL. 


41» 


nf  re- 
htruc- 

ontiTC 

!iulcnt 

Huine 

nented 

!rancn, 
39;   li 

ight  to 

poHc  it 

•h  thnt 

ir,  hiul 

provide 

irnmcnt 

I  a  civil 

lust  the 

uld  still 

cly  not. 

dy  been 

s. 

lie  party 
and  no 
list  and 
honors, 

0  arrest 
.ter  was 
[banal  in 

inferior 
lower  be 
litting  in 

1  to  per- 
Inprison- 
l»is  high 

lay,  that 
nceable 
esumed 
[ion,  and 
iV  coun- 

liolated. 
Lor  than 
Ide  must 

of  the 
Iher  own 

in  the 
,  should 


he  the  moHt  careful  not  to  trench  upon  the  acknowledged  jiirindictiun 
of  the  General  Government. 

But  k't  US  examine  this  ciihc  in  view  of  other  powers  ()f  the  Gen- 
erwi  Government.  If  it  fail  to  obtain  HatiHfactittn  by  treaty  for  this 
entire  offence,  what  then  ih  to  be  <lone  I  Can  it  refer  the  matter,  or 
uny  portion  of  it,  buck  to  the  Htate  of  New  York,  to  be  redrcHsed  in 
her  tribunaU  (     No,  it  has  yet  a  Htrinig  arm  to  Ntretch  forth,   whose 

flower  hat;  been  felt,  and  will  again  be  felt,  when  justice  and  national 
lonor  require  it.  Const.  U.  S.  Art.  1,  Nee.  8—"  Congress  shall  have 
power  to  declare  w:ir,  grunt  letters  of  marque  and  reprisal,  and  make 
rules  concerning  captures  on  land  and  water." 

"  To  raise  and  support  armies."  "  'j'o  provide  and  maintain  a 
navy." 

In  this  Constitution  is  power  enougli,  and  this  portion  of  it  belongs 
exclusively  to  the  Federal  Government.  The  act  in  which  McLeod 
is  alleged  to  have  participated,  being  the  exercise  of  the  public  force 
of  Great  Britain,  and  of  a  hostile  character,  becomes  the  subject  of  re- 
clamation, reprisal,  and  war,  on  the  part  of  the  Govermncnt  of  the 
United  States,  as  it  shall  see  fit,  on  a  failure  to  obtain  acknowledg- 
ment and  indemnity  for  the  oflfence  and  injury  by  negotiation.  Any 
interference  of  the  state  authority  is,  and  will  be,  incompatible  with 
the  exercise  of  this  high  power. 

Suppose  Congress  should  authorise  reprisals  to  be  made,  and  the 
})roperty  of  British  subjects  should  be  taken  until  the  government  felt 
itself  satisfied  for  the  entire  injury,  made  compensation  to  the  own- 
ers of  the  property  destroyed,  and  provided  for  the  survivors  or  the 
friends  of  Durfee — would  not  this  settle  the  whole  matter  I  Could 
Wells  still  prosecute  for  his  steamboat  1  or  the  state  of  New  York 
try,  convict  and  execute  for  the  murder  ] 

Suppose  again  that  Congress  should  declare  war  for  this  offence, 
because  satisfaction  is  denied  ;  and  after  the  waste  of  millions  of 
treasure,  and  the  loss  of  thousands  of  lives,  peace  should  be  conclud- 
ed. Would  it  not  cancel  the  offence,  and  every  part  of  it  1  Surely 
the  contrary  will  not  be  contended  for  ;  nor  but  that  Congress  may 
rightfully  exercise  all  these  powers,  and  bring  about  this  result.  It 
cannot  be  denied  that  the  killing  of  Durfee  is  as  much  embraced 
within  the  scope  of  these  powers,  as  any  other  portion  of  this  of- 
fence. No  one  will  deny  the  right  of  the  provincial  authorities  to 
kill  and  capture  the  invaders  of  Navy  Island,  or  those  engaged  in 
furnishing  them  munitions  of  war,  while  found  withir.  their  jurisdic- 
tion. If  the  steamboat  had  been  found  at  the  island,  instead  of  at 
Schlosser,  and  there  destroyed,  with  all  on  board,  it  might  have  been 
barbarous,  but  would  it  have  been  cause  of  complaint  or  war  ]  No 
man  in  his  senses  will  pretend  it. 

Then  wherein  is  the  offence  1  Clearly  in  the  hostile  invasion  of 
our  territory.  Against  whom  committed  ?  Not  the  state  of  New 
York,  but  the  United  States.  Their  rights  and  their  laws  are  alone 
violated,  and  they  alone,  through  their  government,  can  demand 
satisfaction.  The  destruction  of  the  steamboat  was  the  object  to  be 
accomplished  by  this  violation ;  the  killing  of  Durfee  was  a  mere  in- 
cident to  this  warlike  measure.    All  form  one  entire  national  offence, 


414 


Gould's  reporter. 


and  call  only  lor  entire  national  redress.  This  redress  can  be  sought 
only  in  the  way  known  to  the  laws  of  nations.  Had  this  violation  of 
our  territory  been  at  a  place  within  the  exclusive  jurisdiction  of  the 
LTnited  States,  as  a  fort,  an  arsenal,  the  District  of  Columbia,  or  one 
of  our  territories,  the  trial  of  McLeod,  after  reparation  had  been 
demanded,  would  be  wholly  incompatible  with  the  pending  negotia- 
tions between  the  two  governments,  and  alike  unworthy  of  the  honor 
and  dignity  of  both.  But  as  between  the  United  States  and  all  foreign 
nations,  we  are  one  territory,  one  people,  having  one  interest,  one 
voice,  one  duty,  one  responsibility.  All,  all  are  the  United  States. 
New  York  is  not,  Delaware  is  not,  and  therefore  it  is  that  the  gene- 
ral government,  and  all  its  citizens,  are  alike  responsible  for  the  ac- 
tion of  the  Court  of  General  Sessions  of  Niagara,  where  this  indict- 
ment was  found,  and  for  the  judgment  of  this  Court  on  this  vastly 
important  question.  Nations  are  alone  known  to  each  other,  as 
friends,  by  their  ambassadors  ;  as  enemies,  by  their  armies.  Of  these 
New  York  has  neither — they  are  forbidden  her  by  the  fundamental 
law  of  our  government.  As  well  as  the  state  of  New  York  might 
Schlosser  raise  her  voice  of  complaint  that  her  territory  is  violated, 
and  her  honor  and  dignity  stained,  and  demand  reparation  therefor. 
No  ;  it  is  the  territory  of  tne  United  States  alone  which  has  been  vio- 
lated, her  citizen  slain,  the  property  of  her  citizen  destroyed.  No 
hostile  foot  can  tread  her  soil  that  does  not  tread  upon  the  whole 
nation. 

But  we  deny  the  right  to  put  the  prisoner  upon  his  trial,  in  any 
court,  whether  of  the  State  or  the  nation.  They  are  both  destitute 
of  jurisdiction.  The  Constitution  of  the  United  States  clothes  the 
General  Government  with  exclusive  jurisdiction  of  this  offence,  and 
gives  it  exclusively  to  the  Executive  and  Legislative  departments  of 
that  Government.  The  one  has  lawfully  taken  cognizance  of  it,  and 
of  every  part  of  it ;  and  may  God  in  his  mercy  forbid  the  necessity 
of  its  transfer  to  the  other. 

The  offence  involves  not  individual  guilt,  neither  does  it  call  for 
individual  expiation.  If  McLeod  was  one  of  Captain  Drew's  party, 
(which  is  admitted  only  for  the  purpose  of  this  argument,)  what 
then  \  He  was  a  British  subject,  owing  allegiance  to  his  Govern- 
ment, bound  to  obey,  her  orders.  He  kept  his  faith  ;  he,  with  others, 
rallied  to  her  standard  when  her  territory  was  invaded  by  a  band  of 
armed  men,  amid  the  roar  of  cannon  and  the  din  of  war — yes,  open 
war,  which  threatened  the  subversion  of  her  Government  in  her  Ca- 
nadian provinces.  He  obeyed  her  orders,  and  fulfilled  his  duty  j  and 
think  your  Honors  that  while  he  felt  the  duty  of  allegiance.  Great 
Britain  will  fail  to  feel  her  reciprocal  one,  of  protection  1  No,  nume- 
rous and  deeply  interested  as  is  the  audience  attending  this  argu- 
ment, should  the  state  of  New  York  so  far  forget  the  duties  and 
obligations  imposed  by  the  law  of  nations,  ai  ^  by  the  Constitution 
of  the  United  States,  as  through  this  high  tribunal  to  deny  McLeod's 
discharge,  and  send  him  down  to  a  Circuit  for  trial,  there  is  too 
much  reason  to  believe  that  we  should  be  surrounded  by  a  far  more 
numerous  and  illustrious  audience — none  other  than  a  British  fleet 
on  our  coast,  and  a  British  army  on  our  frontier,  and  instead  of  wit- 


MCLEOD'S   TRIAL. 


4.1::) 


iiossing  the  conviction  and  execution  of  one  man,  we  should  have  to 
(oourn  the  slaughter  of  thousands. 

If  war  must  como,  let  it  come.  As  Americans  wo  will  meet  it — 
but  let  us  not  forget  that  "he  is  doubly  armed  whose  cause  is  just." 
(rreat  Britain  has  avowed  this  open,  flagrant  violation  of  our  terri- 
tory, with  nil  that  was  done.  Let  us  lake  her  at  her  word,  and  hold 
her  to  her  responsibility. 

When  she  has  denied  our  right,  and  refused  to  make  suitable  and 
honorable  reparation ;  when  moderation  and  forbearance  cease  to  be 
virtues,  then  will  the  President  of  the  United  States  inform  the  coun- 
cil of  the  nation  of  the  true  state  of  the  question  of  which  we  know 
so  little,  and  then  shall  its  collected  wisdom  choose  its  own  time  and 
mode  of  redress.  The  trial  cf  McLeod  savors  of  cowardice  and  re- 
venge, and  is  unworthy  of  our  country.  But  the  trial  of  the  British 
nation,  we,  as  Americans,  understand  ;  and  when  necessary,  as  Ame- 
ricans, will  attend.  In  that  trial  there  will  be  no  British  party  on  this 
side  the  waters. 

But  let  this  most  troublesome  and  embarrassing  difficulty  be  re- 
moved, in  the  only  way  in  which  it  can  be  done  in  law  or  honor,  and 
leave  the  United  States  Government  in  the  free  exercise  of  its  con- 
stitutional powers,  and  there  is  every  reason  to  believe,  that  all  the 
great  questions  which  now  agitate  the  two  nations  will  be  speedily, 
justly,  and  honorably  settled  ;  their  peace  be  presc'ed,  and  the  pros- 
perity and  happiness  of  our  country  be  perpetuated  to  after  genera- 
tions. Let  the  national  and  state  governments  continue  to  move  only 
in  their  own  respective  spheres,  regarding  alike  the  rights  of  each 
other  and  the  law  of  nations — let  them  cherish  their  own  honor  and 
dignity,  by  regarding  the  honor  and  dignity  of  other  nations — not 
only  the  Attorney  General,  but  all  of  us,  will  be  satisfied  with  the 
respect  accorded  to  the  exclamation,  "  I  am  an  American  citizen." 


No.    6. 


MESSAGE   OF   GOVERNOR    SEWARD   TO   THE   ASSEJtBLY. 


In  compliance  with  a  resolution  of  the  honorable  the  Assembly,  1 
communicate  a  copy  of  all  the  correspondence  which  has  taken  place 
between  this  department  and  the  executive  authorities  of  the  United 
States  concerning  Alexander  McLeod. 

I  have  the  honor  also  to  inform  the  Assembly  that  no  arrangement 
whatever,  of  any  kind,  or  for  any  purpose,  has  been  entered  into  by 
this  department  with  the  Executive  of  the  United  States  concerning 
that  individual. 

The  Assembly  is  further  informed,  that  the  prisoner  is  now  before 
the  Supreme  Court  of  this  State  on  a  writ  of  Habeas  Corpus,  sued  out, 
as  Is  understood,  by  himself,  with  a  view  to  his  discharge  from  cus- 
tody. This  department  has  no  knowledge  or  information  concerning 
the  application  for  said  writ,  the  issuing  of  the  same,  or  the  action 
of  the  Court,  except  such  as  has  been  obtained  from  the  public  news- 


4t6 


Gould's  reporter. 


papers,  and  is  presumed  to  be  in  possessian  of  the  Assembly.  TI 
proceeding  first  became  known  to  this  department  when  the  prisoni 
passed  through  this  city  on  his  way  to  the  city  of  New  York,  in  cu 
todv  of  the  Sheriff,  in  obedience  to  the  writ  of  Habeas  Corpus. 

The  Attorney  General  of  this  State  was  thereupon  immediate 
instructed  to  resist  the  motion  for  the  discharge  of  the  prisoner,  an 
at  the  same  time  the  President  of  the  United  States  was  respectful! 
informed  that  the  appearance  of  the  District  Attorney  of  the  Unite] 
States  tas  counsel  for  the  prisoner,  was  deemed  incongruous  with  hi 
official  duties  and  injurious  to  this  State.  The  Attorney  General 
now  engaged  in  the  discharge  of  the  duty  assigned  him. 

An  incidental  correspondence,  on  the  subject  of  the  imprisonmei 
of  Alexander  McLeod,  having  arisen  between  his  Excellency  tl 
Governor  of  the  Canadas  and  the  Executive  of  this  State,  a  copy  o 
the  same  is  also  laid  before  the  Assembly. 

The  Assembly  is  respectfully  assured  that  under'no  circumstanc( 
will  any  arrangement  or  proceedings  be  entered  into  or  permittei 
with  the  consent  of  this  department,  the  effect  of  which  might  be,  t 
compromit,  in  the  least  degree,  the  rights,  dignity,  or  honor  of  th 
State. 

WILLIAM  H.  SEWARD. 


the  Assembly.  TI 
entwhen  the  prisoni 
of  New  York,  in  cu 
labeas  Corpus, 
ereiipon  immediate! 
e  of  the  prisoner,  an 
:ates  was  respectful 
Lttorney  of  the  Unitt 

incongruous  with  h 
8  Attorney  General 
rned  him. 

;  of  the  imprisonmei 
n  his  Excellency  tl 

this  State,  a  copy  o 


ider'no  circumstanc( 
ed  into  or  permitte( 
of  which  might  be,  t 
^nity,  or  lionor  of  th 

H  H.  SEWARD. 


